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Virginia teacher shot by 6-year-old student can sue school district, judge rules

Abby Zwerner attends a hearing for a civil lawsuit she filed against the Newport News Public Schools on Oct. 27 in Newport News, Va.  (Billy Schuerman/The Virginian-Pilot/TNS)
By Peter DuJardin Virginian-Pilot

NEWPORT NEWS, Va. – A Newport News Circuit Court judge ruled Friday that the first-grade teacher shot by a 6-year-old student at Richneck Elementary School in January can proceed with her $40 million lawsuit against the school division.

In the ruling, Judge Matthew W. Hoffman said Abigail Zwerner, 25, is not limited to filing a workers’ compensation claim, as attorneys for the Newport News School Board and other defendants asserted.

“The Court finds the injury suffered by Plaintiff did not arise out of her employment,” Hoffman wrote in the eight-page decision. The defendants’ plea to toss the case, he wrote, “is denied.”

Under longstanding Virginia law, claims stemming from a workplace injury are resolved exclusively by the Workers’ Compensation Act, with such workers barred from pursuing claims through personal injury lawsuits. If she filed such a claim, Zwerner could collect two-thirds of her teacher’s pay – tax free – for nine years and eight months, plus lifetime medical benefits.

But Zwerner’s attorneys contend that getting shot by a student in her classroom isn’t reasonably seen as a workplace hazard. Not only would no teacher have anticipated getting shot by a student, they said, but the shooting itself was directed at Zwerner in particular. They want damages to be determined by a Circuit Court jury or a negotiated settlement.

Zwerner’s lawyers applauded Hoffman’s ruling.

“This victory is an important stepping stone on our path towards justice for Abby,” attorneys Diane Toscano, Jeffrey Breit and Kevin Biniazan wrote in a statement. “We are eager to continue our pursuit of accountability and a just, fair recovery. No teacher expects to stare down the barrel of a gun held by a 6-year-old student.”

The Newport News School Board and other defendants are expected to appeal, and the case could end up before the state Supreme Court. Such an appeal could significantly delay the scheduling of a trial. In fact, the docket shows the seven-day jury trial isn’t scheduled until January 2025.

“Obviously, we’re surprised about this, and we disagree with the ruling,” said Anne Lahren, an attorney for the School Board, releasing a statement on behalf of the board and two other defendants, former Superintendent George Parker III and former Richneck Principal Brianna Foster Newton.

“A teacher being injured at the hands of a student” is “unfortunately … a fairly common occurrence and one that is only increasing in frequency this day and age,” Lahren wrote. Though Hoffman ruled the shooting stemmed from a personal issue the child had with Zwerner, “it is clear that the student and Ms. Zwerner only knew each other through their teacher-student relationship.”

As such, Lahren contended, worker’s comp remains the exclusive remedy under law.

“We therefore disagree with Judge Hoffman’s ruling and fully anticipate its reversal by the appellate court.”

About 2 p.m. on Jan. 6, Zwerner was breaking her first-grade class into reading groups after recess. The 6-year-old was sitting at his desk when he suddenly pulled a handgun out of his front hoodie pocket and pointed it at the teacher – sitting at a reading table less than 10 feet away.

“What are you doing with that?” she asked. The boy paused, then fired a single round. The bullet went through Zwerner’s hand which she held up as the boy fired – and then struck her in the shoulder, where it remains today. She was released from the hospital about 10 days later.

In the April 3 lawsuit, Zwerner’s attorneys contend the child’s alarming past behavior, such as choking another teacher and whipping other students with a belt, should have led to heightened safety precautions at the school.

Instead, the complaint says, Richneck’s assistant principal Ebony Parker – also a defendant – ignored warnings that the boy had a gun on the day of the shooting. For example, the lawsuit says, another student told a teacher that the boy showed him a gun while at recess and warned him not to tell anyone. Still, Parker wouldn’t allow the boy’s bags to be searched, the complaint says, saying in part that the boy has small pockets.

The School Board filed a plea April 26 contending the Circuit Court has no “subject matter jurisdiction” over the case, and that Zwerner must file a worker’s comp claim.

The Workers’ Compensation Act, instituted in Virginia in 1918, broadly protects workers who are injured on the job through accidents and disease. A key provision of the law is that it protects workers in fault and no-fault accidents. In other words, workers are covered even if their own negligence caused their injury.

But the tradeoff is that workers are sharply limited in suing their employers. They cannot collect both worker’s comp and damages from a lawsuit, and in fact are barred from proceeding with a lawsuit in most circumstances. It’s a “legislative quid pro quo” that amounts to “a societal exchange” between workers and their companies, Hoffman wrote, citing prior court decisions.

To get worker’s comp, Hoffman wrote, an injury must under law be accidental, must take place “during the course of employment” and must “arise from” that employment. Those are “the three essential elements for an injury to fall within the exclusive provisions of workers’ compensation coverage,” he added.

In this case, Hoffman wrote, two of the necessary elements are undisputed.

Being the victim of an assault – or even a gunshot wound – is considered an “accident” under the law because it was caused by a “sudden … precipitating event.” And because the shooting took place in Zwerner’s class as she taught, it was “during the course of her employment.”

But the third element – that the shooting “arose” from Zwerner’s job as a first-grade teacher – wasn’t established, Hoffman ruled. That eliminates worker’s comp as the remedy, thereby allowing the lawsuit to go forward.

“This Court does not find that the injury of a gunshot wound is one that is a ‘natural incident of the work’ or its origin ‘connected with the employment’ of a first-grade teacher and would not be contemplated by a reasonable person,” Hoffman wrote. There’s no rational connection, he wrote, between the Zwerner’s injury and risk of the job the educator was required to perform.

“The danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher in a class,” Hoffman wrote.

Zwerner’s job teaching first graders “does not come with the inherent risk” faced by workers who deliver money to banks, employees working as counselors with at risk youths, employees working late nights at gas stations or teachers working solely with special-needs students – all cases the judge cited in which courts have ruled that risks and injuries arose from the job itself.

Moreover, Hoffman wrote, if an assault is “personal to the employee,” it did not by nature “arise from the employment.”

In this case, he noted, the 6-year-old slammed Zwerner’s cell phone two days earlier, causing the boy to be suspended from school. On the day of the shooting, he waited until he was back in Zwerner’s classroom to fire at her.

“He did not at any time threaten any other student, teacher, or administrator at the school with the firearm,” Hoffman wrote. “The shooting was ‘personal’ and was directed against Plaintiff.”