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Clark County School District v. Payo

Supreme Court of Nevada

October 26, 2017

MAKANI KAI PAYO, Respondent.

         Appeal from a final judgment in a tort action. Eighth Judicial District Court, Clark County; Valorie J. Vega, Judge; Richard Scotti, Judge; Joseph Hardy, Jr., Judge.

          Clark County School District, Office of the General Counsel, and Daniel L. O'Brien, Senior Assistant General Counsel, Las Vegas, for Appellant.

          Kurth Law Office and Robert 0. Kurth, Jr., Las Vegas, for Respondent.



          HARDESTY, J.

         In this appeal, we are asked to reverse a judgment on a jury's negligence verdict, awarding past and future medical damages to a former middle school student who sustained an eye injury during his physical education class. According to appellant, the negligence claim is barred by two legal doctrines-implied assumption of risk and discretionary-function immunity-and, regardless, it was otherwise unsupported by evidence that would allow recovery. With regard to implied assumption of risk, we conclude that the doctrine does not apply here, as the student's participation in the physical education class was compulsory and thus lacks the required element of voluntariness on which assumption of the risk is based.

         With regard to discretionary-function immunity, we conclude that the doctrine applies to the school district's decisions to add floor hockey as a unit of the physical education curriculum and to not provide safety equipment because those decisions meet both elements of the discretionary-function-immunity test in that they are both discretionary and policy-based. Although these decisions are protected under the discretionary-function-immunity doctrine, the school district is not immune from liability for allegedly negligent administration, instruction, and supervision of the floor hockey class as such decisions, while discretionary, are not based on policy and thus fail to meet both elements of the discretionary-function-immunity test.

         Finally, upon review of the record, we agree with appellant that as a matter of law, respondent failed to provide sufficient evidence to support the jury's finding of proximate cause, and thus his negligence claim fails. Accordingly, we reverse the judgment.


         In 2004, respondent Makani Kai Payo was an 11-year-old student attending C.W. Woodbury Middle School, a school located within appellant Clark County School District (CCSD). While participating in a floor hockey game as part of his mandatory physical education class, another student unintentionally struck Payo in the eye with his hockey stick. As a result of the accident, Payo required eye surgery and attended several medical appointments for his eye between 2004 and 2007.

         Woodbury implemented floor hockey into its curriculum in 1997 with the approval of school district officials. Although the "Woodbury Hockey Unit" rules indicated that teams were supposed to have 6 players each, each team generally had 8 to 10 players because class sizes were large in 2004. While the unit rules also stated that the game was to be played with a specific type of ball, testimony indicated that a tennis ball may have been used instead. The unit rules did not mandate the use of safety equipment during floor hockey activities.

         On September 21, 2012, Payo, then an adult, filed a complaint against CCSD alleging negligence, negligent infliction of emotional distress, negligence per se, and negligent supervision. CCSD moved to dismiss the complaint, arguing among other things that Payo's negligence claims were barred by the implied assumption of risk doctrine, Payo's parents were indispensable parties, Payo was not permitted to collect medical expenses that he did not incur, and the complaint failed to allege any facts to support a negligent supervision claim. The district court granted in part CCSD's motion, dismissing the negligent infliction of emotional distress and negligence per se claims, but the district court denied the motion as to the negligence and negligent supervision claims, finding that CCSD failed to meet its burden to show that there was no set of facts on which Payo could prevail.

         CCSD later moved for summary judgment, arguing that it had no duty to provide safety equipment, being struck with a hockey stick is a risk inherent in the sport and CCSD did nothing to increase the risk such that it could be liable for Payo's injury, Payo failed to state any facts or identify admissible evidence to support his remaining claims, and regardless, Payo's damages should be limited to future medical expenses and past and future general damages. The district court denied CCSD's motion and Payo's countermotion for summary judgment, determining that genuine issues of material fact existed as to duty, whether CCSD exercised reasonable care in allowing floor hockey in P.E. class without providing safety equipment, whether the treatment and advice CCSD provided to Payo was reasonable, and whether additional training, supervision, or equipment could have prevented the injury.

         Prior to trial, CCSD argued that it was entitled to discretionary-function immunity with regard to the decision to adopt floor hockey as a part of the P.E. curriculum and with regard to the decision to not provide safety equipment, but the district court rejected that argument and allowed Payo to allege negligence on those grounds. During closing arguments, Payo's counsel stated, "We're here because they dispute that they did anything wrong and we say they did do something wrong. They created this activity. Do they have to play floor hockey? . . . [W]hy make these kids play this activity?"[2] Counsel further argued, "they never should have been playing the game in the first place, " and "[t]he school district has a general duty to exercise reasonable care. They increase the risk of harm by putting them into this activity, by agreeing to have the activity. . . ." Payo's counsel also argued, "Makani was damaged and injured because of the negligence on the part of the school district by not providing simple safety equipment by playing this game. Why play the game if you don't have the equipment?"

         During trial, Payo argued that CCSD was negligent for violating the school's rules regarding team size, for using a tennis ball rather than a rubber ball as prescribed by the school's rules, for failing to provide safety equipment, and for negligently supervising and instructing the students. Todd Peterson, Payo's physical education teacher at the time of the accident, testified that he supervised the game, and, while the students were not required to wear any protective gear, he did instruct them on the rules of hockey, including the rule prohibiting "high sticking." Although Payo did not recall Mr. Peterson giving such instructions, Payo did recall someone mentioning no "high sticking, " meaning no swinging the stick above the shoulder. Payo could not remember exactly where Mr. Peterson was during the game, but he testified that he did not believe that Mr. Peterson left the area. Payo further testified that Mr. Peterson could not have done anything to prevent the accident once it started because it occurred so quickly. When asked what wrongdoing caused his injury, Payo stated, "Maybe safety equipment could have been provided where I had head protection, maybe safety goggles or something."

         The jury found in favor of Payo and awarded him $48, 288.06 for past medical expenses, $10, 000 for future medical expenses, $2, 000 for past pain and suffering, and $0 for future pain and suffering. The district court entered a post-verdict order allowing Payo to recover past medical expenses and reducing Payo's damages to the then-applicable statutory cap of ...

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