When Your “Best” Evidence Doesn’t Matter

Details matter and are why the Supreme Court reversed a jury verdict in Clark Cty. Sch. Dist. v. Payo.[1]  Payo was a student at CCSD participating in a floor hockey game that was part of the district’s required physical education curriculum when “another student unintentionally struck Payo in the eye with his hockey stick,” causing an eye injury.  After a long discussion about the limit of CCSD’s discretionary function immunity, the judgment against CCSD was reversed because Payo failed to demonstrate CCSD’s negligence proximately caused his injuries.

“Payo’s negligence claim was based on the type of ball used, the large team sizes, and the alleged lack of instruction provided by” the physical education teacher.  As to the ball, “Payo testified that a tennis ball was used during the game rather than a specific type of rubber ball prescribed by the rules. However, Payo failed to offer any testimony or evidence that would demonstrate how using the tennis ball caused the injury to his eye.”  Payo was injured because another student’s stick struck his eye.  The type of ball used had nothing to do with the injury.  As to the size of the teams, the teacher “testified that each team generally had 8-10 players, which demonstrated that the teams were larger than the school rules indicated, but Payo failed to offer any testimony or evidence to show that the larger team sizes contributed to his injury.”

Finally, there was a factual disputes as to whether the teacher had given instruction.  However,

Payo could not say whether additional or different measures could have prevented his injury. Payo further acknowledged that his teacher did not do anything to cause his injury and he knew of nothing the teacher did wrong. In fact, Payo testified that the incident happened so quickly that there was no way to prevent his injury

Based upon this, the jury was not presented any evidence indicating these three negligent acts proximately caused the student’s injury.  What the student needed was discovery, perhaps including an expert, that could have linked the circumstances he encountered to his injury. Details matter.

[1] 133 Nev. Adv. Rep. 79 (Oct. 26, 2017).