Abby Zwerner/Facebook
Abby Zwerner

Judge rules that Virginia teacher shot by first-grader can sue her school district

Nov. 6, 2023
Abby Zwerner has sued the Newport News (Virginia) district over the Jan. 6 shooting, but the district says her claims should be handled as a Workers' Compensation issue.

A Virginia judge has ruled that the first-grade teacher shot earlier this year by a 6-year-old student can proceed with her $40 million lawsuit against the Newport News school district.

The Virginian-Pilot reports that the ruling says Abigail Zwerner, 25, is not limited to filing a Workers’ Compensation claim, as attorneys for the school district and other defendants asserted.

“The Court finds the injury suffered by Plaintiff did not arise out of her employment,” Judge Matthew W. Hoffman wrote in an eight-page decision.

Under Virginia law, claims stemming from a workplace injury are resolved exclusively by the Workers’ Compensation Act, and such workers cannot pursue claims through personal injury lawsuits. If she went through Worker’s Comp, 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 a first-grade 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 “personal,” directed at Zwerner in particular. They want damages to be determined by a Circuit Court jury or a negotiated settlement.

The school district is expected to appeal to the Virginia Court of Appeals, 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.

Anne Lahren, an attorney that represents the school board, released 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,” Lahren wrote, is “unfortunately … a fairly common occurrence and one that is only increasing in frequency this day and age.” Though Hoffman ruled that 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. 

Zwerner was shot in her classroom at Richneck Elementary in Newport News on Jan. 6. The 6-year-old was sitting at his desk when he pulled a handgun out of his hoodie pocket and pointed it at the teacher less than 10 feet away and fired a single round.

The bullet went through Zwerner’s left 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.

Zwerner's lawsuit argues that 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.

To get Worker’s Comp, Hoffman wrote, an injury must 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."

The third element — that the shooting “arose” from Zwerner’s job as a first-grade schoolteacher — wasn’t established, Hoffman ruled. That eliminates Worker’s Comp as the remedy, he said, 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.

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