A teacher who was shot by her 6-year-old son in Virginia can move forward with her $40 million lawsuit against a school system over allegations of negligence by school administrators, a judge ruled Friday.
Newport News Circuit Court Judge Matthew Hoffman's surprise decision means Abby Zwerner could get much more than just workers' compensation for serious injuries caused by the January classroom shooting.
Lawyers for Newport News Public Schools had attempted to block the lawsuit, arguing that Zwerner was only eligible for workers' compensation. Provides up to nearly 10 years of pay and lifelong medical care in the event of injuries.
Zwerner's attorneys countered that workers' compensation doesn't apply because a first-grade teacher would never anticipate being shot: "It wasn't a real risk to her job."
The judge wrote: “The danger of being shot by a student is not peculiar or exclusive to the job of a first-grade teacher.”
Zwerner she was hospitalized for almost two weeks and endured multiple surgeries after a bullet hit his hand and chest. Zwerner alleges that administrators ignored multiple warnings that the boy had a gun that day and routinely dismissed concerns about his concerning behavior.
"This victory is an important step on our path to justice for Abby," Zwerner's attorneys, Diane Toscano, Jeffrey Breit and Kevin Biniazan, said in a statement.
"We look forward to continuing our pursuit of accountability and a just recovery," they said. “No teacher expects to stare down the barrel of a gun wielded by a six-year-old student.”
Zwerner he does not work anymore for the school system. The tentative trial date for his lawsuit is scheduled for January 2025.
Lawyers for the school board indicated they would appeal Friday's decision and said in a statement that they "fully anticipate its reversal by the appeals court."
The school board maintained that Zwerner's injuries were directly related to his job and were therefore covered by workers' compensation.
"The real employment risk in this scenario is that of a teacher being injured at the hands of a student, which, unfortunately, is a fairly common occurrence and is increasing in frequency today," the board's attorney said. schoolgirl Anne Lahren. she said in a statement.
Some legal experts expected Zwerner's lawsuit to fail under Virginia's unusually strict workers' compensation law. This is because it covers workplace assaults and negligence allegations against employers. Lawsuits that could advance in other states often fail in the Commonwealth.
JH Verkerke, a law professor at the University of Virginia, said Friday's ruling was "somewhat surprising" based on previous Virginia court decisions.
“Virginia's precedent surely gives the school board reason to expect the lower court's ruling to be overturned,” Verkerke said.
In early January, the 6-year-old boy took out his mother's gun and shot Zwerner while she was sitting at a reading table in front of his first grade class. She led the rest of her students into the hallway before collapsing in the school office.
The shooting revived a national dialogue on gun violence and shook this military shipbuilding city near Chesapeake Bay.
Zwerner filed suit in April alleging that 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 at home, including when he "strangled" his kindergarten teacher.
Verkerke, the law professor, said that Zwerner's lawyers had to prove that the shooting was not related to Zwerner's work. His challenge was to “discover in some way that is personal.”
In his ruling Friday, Judge Hoffman wrote that the shooting of Zwerner was “personal.”
Judge Hoffman noted that the boy had the gun on him from the beginning of the school day until just before dismissal.
"It was not until the student returned to (Zwerner's) classroom that he decided to fire once, hitting (Zwerner)," Judge Hoffman wrote. "At no time did he threaten any other student, teacher or school administrator with a firearm."
Zwerner's attorneys argued in a brief last month that the boy's "violence was random and directed at everyone, both inside and outside of school."
He “claimed that he was angry because people were 'picking on' his friend, a motivation that had nothing to do with (Zwerner),” his attorneys wrote without further details. "His motivation for him was personal."
The school board disagreed and questioned how the shooting could not be work-related.
In response to the judge's decision on Friday, attorneys for the school board said that "it is clear that the student and Ms. Zwerner only knew each other through their teacher-student relationship."
“For a 'personal' action to override the exclusivity of the Workers' Compensation Act, that personal reason must not be related to...employment,” they wrote.
Workers' compensation laws were considered a great compromise in the 20th century between injured workers and employers, Verkerke said. Workers lost the ability to sue in most cases, protecting employers from huge payouts. But people who were injured got much easier access to compensation (lost wages and medical coverage) without having to prove fault.
"I'm quite sympathetic to the idea of such an attack being left out of the 'grand bargain' at the root of workers' compensation law," Verkerke said.
But he said the facts of the case call into question the conclusion that the shooting was personal. The school board, he said, “would have substantial grounds to appeal.”
