NEWPORT NEWS, Va. — A teacher who was shot by her 6-year-old student in Virginia can press forward with her $40 million against a school system over claims of negligence by school administrators, a judge ruled Friday.
The surprise decision by Newport News Circuit Court Judge Matthew Hoffman means that Abby Zwerner could get much more than just workers compensation for the serious injuries caused by January's classroom shooting.
Lawyers for Newport News Public Schools had tried to block the lawsuit, arguing that Zwerner was eligible only for workers compensation. It provides up to nearly 10 years pay and lifetime medical care for injuries.
Hoffman disagreed with the school board, concluding that Zwerner's injuries “did not arise out of her employment” and therefore did not “fall within the exclusive provisions of workers’ compensation coverage.”
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The judge wrote: “The danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher."
Zwerner was hospitalized for nearly two weeks and endured multiple surgeries after a bullet struck her hand and chest. Zwerner alleges that administrators ignored multiple warnings the boy had a gun that day and had routinely dismissed ongoing concerns about his troubling behavior.
“This victory is an important stepping stone on our path towards justice for Abby," Zwerner's attorneys, Diane Toscano, Jeffrey Breit and Kevin Biniazan, said in a statement.
“We are eager to continue our pursuit of accountability and a just, fair recovery,” they said. "No teacher expects to stare down the barrel of a gun held by a six-year-old student.”
"How is Abby Zwerner?" News 3's Leondra Head asked Zwerner's attorney.
"She is relieved by today’s ruling and glad to have this ruling behind us now and eager to get to a jury trial, and let a jury hear about the gross negligence that took place that day leading to Abby to get shot," Diane Toscano and Jeffrey Breit said.
"Did the school board or school district ever try to settle with you all?" Head asked Zwerners attorneys.
"Zero. They said they thought workers comp applied and would not discuss any settlement negotiations," Breit said.
Some legal experts expected Zwerner's lawsuit to fail under Virginia’s uncommonly strict workers compensation law. That's because it covers workplace assaults and allegations of negligence against employers. Lawsuits that might move forward in other states often falter in the Commonwealth.
Zwerner's lawsuit trial is scheduled to start in January 2025.
The classroom shooting by a first-grader revived a national dialogue about gun violence and roiled this military shipbuilding city near the Chesapeake Bay.
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In early January, the 6-year-old pulled out his mother’s handgun and shot Zwerner as she sat at a reading table. She rushed the rest her students into the hallway before collapsing in the school’s office.
Zwerner sued in April, alleging school officials ignored multiple warnings that the boy had a gun and was in a violent mood.
Police have said the shooting was intentional. Zwerner claims school officials knew the boy “had a history of random violence” at school and home, including when he “choked” his kindergarten teacher.
The school board filed motions to block the litigation, arguing that workplace assaults and allegations of negligence fall under Virginia’s workers compensation law.
Zwerner’s attorneys countered that workers’ compensation doesn’t apply because a first-grade teacher would never anticipate getting shot: “It was not an actual risk of her job.”
“Her job involved teaching six-year-old children, not exposing herself to criminal assault whenever she went to work,” Zwerner’s lawyers wrote in a brief to the court.
J. H. Verkerke, a University of Virginia law professor, previously told The Associated Press that Zwerner’s attorneys faced an uphill battle under the state’s strict workers compensation law. He said they needed to prove the shooting was unrelated to Zwerner’s job, even though she was shot in her classroom.
Their challenge was “to somehow make out that it’s personal,” Verkerke said.
Zwerner’s attorneys argued the boy’s “violence was random and aimed at everyone, both in and out of school.”
He “asserted that he was angry that people were ‘picking on’ his friend, a motivation that had nothing to do with (Zwerner),” her lawyers wrote without further elaboration. “His motivation was a personal one.”
The school board disagreed, writing that the shooting cannot be personal because 6-year-olds lack the capacity to form intent according to Virginia law.
The lawyers also questioned how the shooting could be anything but work-related.
“Everything about this incident arises from (Zwerner’s) employment as a teacher,” the school board argues. “There is no allegation — nor could any such allegation be credibly made — that (Zwerner) had any personal relationship with (the student).”
Workers’ compensation laws were deemed a grand bargain in the 20th century between injured workers and employers, Verkerke said. Workers lost the ability to sue in most cases, protecting employers from enormous payouts. But people who were injured gained much easier access to compensation — lost pay and medical coverage — without having to prove fault.
