dissenting:

I dissent from the majority’s conclusion that “the Nevada Supreme Court has modified the definition of wilful conduct.”

The Nevada Supreme Court carefully defined and distinguished the concepts “wilful” and “wanton” in Crosman v. Southern Pac. Co., 44 Nev. 286 , 194 P. 839 (1921) and Rocky Mountain Produce Trucking Co. v. Johnson, 78 Nev. 44 , 369 P.2d 198 (1962). We followed the Crosman definition in Gard v. United States, 594 F.2d 1230 (9th Cir.1979). Davies v. Butler, 95 Nev. 963 , 602 P.2d 605 (1979), was decided by the Nevada Supreme Court a few months after Gard . In Davies, the trial court instructed the jury that “ ‘[contributory negligence if any, on the part of the decedent does not reduce any recovery by the plaintiffs ... against a defendant for an injury caused by misconduct of a defendant if you find that the defendant intended to inflict harm upon the decedent.’ (Emphasis added.)” Davies, 602 P.2d at 609 . The court found the instruction to be erroneous and approved the following requested instruction:

Davies, 602 P.2d at 609 .

For the purpose of discussing contributory or comparative negligence it is sufficient to lump the definition of wilful and wanton together as was done in the instruction. Neither wilful nor wanton is defined in the instruction but instead the phrase “wilful or wanton” is defined. I am not at all satisfied that the definition of two words in the alternative can be treated as a' definition of each individual word. The Davies court observed “[i]t has long been the rule in this jurisdiction that contributory negligence is not a bar to recovery for injury or damage caused by the willful or wanton misconduct of a defendant. Rocky Mt. Produce v. Johnson, 78 Nev. 44 , 369 P.2d 198 (1962); Crosman v. Southern Pac. Co., 44 Nev. 286 , 194 P. 839 (1921).” Davies, 602 P.2d at 609 .

I find it noteworthy that no effort was made by the Nevada Supreme Court to overrule or distinguish either Rocky Mountain or Crosman . The supreme court went on to observe:

Id. at 610.

As with Davies, the Van Cleave v. Kietz-Mill Minit Mart, 97 Nev. 414 , 633 P.2d 1220 (1981), decision did not need to make a distinction between “wilful” and “wanton.” It needed only to describe the minimal behavior that would present a genuine issue of material fact to overcome a motion for summary judgment. There are similar circumstances in Bell v. Alpha Tau Omega Fraternity, 98 Nev. 109 , 642 P.2d 161 (1982). At issue were the proper jury instructions. The Nevada Supreme Court gave a description of “wanton” when it said: “[wjillful misconduct requires a consciousness that one’s conduct will very probably result in injury.” Bell, 642 P.2d at 162 . I think the choice of the word “willful” was unfortunate, but all that was necessary to know was the least conduct *839 that could overcome a motion to dismiss. I do not think we can imply a desire by the Nevada Supreme Court to change concepts it previously had so meticulously defined through the improvident choice of a word.