The claims filed by a Virginia teacher who was injured when shot by a 6-year old student will be heard at a trial and not in the state’s workers’ compensation system.
The Virginia Court of Appeals on March 29 declined to hear an appeal by the Newport News School Board of a lower court ruling last November that cleared the way to a trial for Abigail Zwerner’s negligence suit over the shooting.
The Newport News school board says Zwerner’s $40 million lawsuit filed against it is barred by the state’s workers’ compensation law that is the exclusive remedy for workplace injuries. The board maintains that Zwerner is not entitled to a trial over liability for her injuries.
Zwerner maintains that being shot by a student should not be considered an expected condition for the job of a teacher and thus her injuries do not fall under the state’s workers’ compensation system.
Last November Newport News Circuit Court Judge Matthew Hoffman agreed with Zwerner that her injuries “did not arise out of her employment” as required by workers’ compensation coverage. “The danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher,” Hoffman wrote.
Lawyers Argue Over Workers’ Compensation for Teacher Shot by 6-Year-Old
Now that the state appellate court has declined to hear the school board’s appeal of Hoffman’s decision, a trial is expected to start in January 2025.
Zwerner’s attorneys welcomed the news. “The higher court has spoken—we will go to trial. This is another important victory in a string of victories for Abby Zwerner that paves the way for her finally having her day in court. Newport News School Board has made every effort to skirt accountability, but their day is coming,” attorneys Diane Toscano, Kevin Biniazan, and Jeffrey Breit said in a joint statement.
Anne C. Lahren, the attorney with Pender & Coward representing the Newport News School Board, acknowledged that the type of appeal — an interlocutory appeal — her client made to the appeals court is rarely granted but she believes that in the long run her client will prevail.
“We knew when we filed the petition that the Court of Appeals granting our petition at this stage in the litigation was a long shot. With the interlocutory appeal being denied, the case will now proceed to trial and we firmly believe that the Supreme Court of Virginia will ultimately rule that Ms. Zwerner’s workplace injuries fall under the exclusive jurisdiction of Virginia’s Worker’s Compensation Act. As clearly shown in the order denying the interlocutory appeal, all issues are preserved for future appellate review,” Lahren said in a statement.
Lawsuit Background
Zwerner was hospitalized in January 2023 for nearly two weeks and endured multiple surgeries after a bullet struck her hand and chest. She no longer works for the school system.
Zwerner is suing the board, former Superintendent Dr. George Parker, III, and others in tort for damages, accusing them of gross negligence for allegedly ignoring multiple warnings on the day of the shooting that the boy had a gun and was in a “violent mood.”
According to her complaint, Zwerner suffered permanent bodily injuries, physical pain, mental anguish, lost earnings and other damages. She is seeking $40 million in compensatory damages.
Zwerner’s complaint claims that all of the defendants knew the child “had a history of random violence” at school and at home, including an episode the year before, when he “strangled and choked” his kindergarten teacher. Zwerner alleges that the school administrators knew that John Doe attacked students and teachers alike.
The school board argues that workers’ compensation is Zwerner’s remedy because workplace conditions were a “direct and proximate cause” of the physical attack on her on January 6, 2023, and because she was acting in furtherance of her employment when the student, who is referred to as John Doe in court documents, shot and injured her.
Judge Rules Virginia Teacher Shot by Student Can Proceed with $40 Million Lawsuit
Violence against teachers is not uncommon and has become part of the workplace, the board contends. It cites reports of incidents of violence in classrooms in Newport News and across the country.
“While in an ideal world, young children would not pose any danger to others, including their teachers, this is sadly not reality,” the filing states.
“Plaintiff was clearly injured while at work, at her place of employment, by a student in the classroom where she was a teacher, and during the school day. Teaching and supervising students in her first grade class was a core function of Plaintiff’s employment. Thus, Plaintiff’s injuries arose out of and in the course of her employment and fall under Virginia’s Workers’ Compensation Act unless an exclusion applies,” the school board asserts.
Some legal experts expected Zwerner`s lawsuit to fail given Virginia’s strict workers` compensation law that covers workplace assaults and allegations of negligence against employers.
J.H. Verkerke, a University of Virginia law professor, told The Associated Press that the trial judge’s ruling last November was “somewhat surprising” based on previous Virginia court decisions and the school board had reason to hope it would be reversed.
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