Virginia Teacher Secures Right to Trial Against School Over Shooting by 6-Year Old *Centurion Insurance AFS*

The $40 million liability lawsuit filed by a Virginia teacher who was 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.

The Newport News school board says the $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 Abigail Zwerner is not entitled to a trial over liability for her injuries; rather she is entitled only to the remedy of workers’ compensation for the shooting that took place in her classroom.

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.

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 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.

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.

Topics
Virginia
K-12