Abigail Zwerner (via YouTube screengrab/NBC’s Today Show)
The school district that employs the teacher who was shot by her 6-year-old first grade student says that the teacher’s lawsuit against the district should be dismissed because she was injured in the course of her job — and therefore it’s a matter of workers’ compensation.
Abigail Zwerner, a teacher at Richneck Elementary School in Newport News, Virginia, was seriously injured on Jan. 6 after being shot by one of her students, identified in court documents as John Doe. The boy had apparently snuck a handgun belonging to his mother into the school that day, and at around 2:00 p.m. — after teachers allegedly gave multiple warnings to school administrators that the boy could be dangerous — he shot his teacher
Zwerner suffered life-threatening injuries and sued the school district and administrators earlier this month, alleging negligence and reckless disregard on the part of the school district.
On Wednesday, the school board asked that the lawsuit be dismissed.
The motion from the school district, which notes that Zwerner has so far refused to accept payment under Virginia’s Workers’ Compensation Act, argues that the Newport News Circuit Court doesn’t have jurisdiction over the case because being shot by a first-grader is, essentially, a risk that all teachers take.
“One cannot assess the state today of education-based employment in the United States without paying attention to the problem of violence in its classroom,” the motion says, calling this an “unfortunate reality.” Although teachers today see themselves as “the first line of defense” when students attack each other, the motion says, “teachers themselves are common targets of violent behavior by students.”
The school district says that Zwerner’s claim is actually a workers’ comp claim because her injuries occurred “in the course of” and “arising out of the course of employment.” Workers’ compensation covers cases of physical assaults if “the probability of assault was augmented either because of the particular character of claimant’s job or because of the special liability to assault associated with the environment in which he or she must work.”
In other words, the school district appears to be arguing, the “particular character” of Zwerner’s job as a teacher increased the likelihood that she would face a violent assault.
“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,” the school board argues. “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[.]”
The school district argues that the fact that she was shot with a handgun — as opposed to stabbed, punched, or otherwise assaulted — shouldn’t be part of the equation and that any emphasis by Zwerner on the gun is merely a distraction.
“While in an ideal world, young children would not pose any danger to others, including their teachers, this is sadly not reality,” the motion says. “This is exactly why Plaintiff strategically focuses on the use of a handgun as opposed to some other weapon with less perceived notoriety and shock value, even though serious injuries can be inflicted with scissors, knives, pencils, rocks, chairs, and hands. If the allegations in the Complaint substituted ‘sharp scissors’ for ‘gun’ and John Doe stabbed Plaintiff in the neck in the classroom, there would be no doubt that the injury would fall under Workers’ Compensation. The handgun is the classic ‘red herring.””
The motion also seems to imply that Zwerner should have anticipated the gun attack from the 6-year-old boy.
According to the school, Zwerner herself was a part of John Doe’s “Student Support Team (SST)” and had agreed to a schedule that didn’t require that he be accompanied by a parent, which had previously been part of his individualized education plan. Because the student had a history of violent behavior toward students and teachers, the complaint says, Zwerner should have been aware of the possibility she could be shot.
“Plaintiff was well-aware of John Doe’s history and behavioral challenges through her role as a teacher at Richneck Elementary School and a member of John Doe’s SST,” the motion says. “Educating John Doe through his behavioral evaluation and educational journey was squarely within Plaintiff’s job description. Thus, when John Doe acted out and injured Plaintiff during class on January 6, 2023, the resulting injuries fall under Workers’ Compensation.”
The motion did not address the allegations contained in Zwerner’s complaint regarding alleged repeated failures on the part of school administrators to take seriously the warnings raised by multiple teachers that the little boy had a gun with him that day.
Zwerner’s legal team, which has argued that being shot by a first grader is not an actual risk of being a teacher, appears to have anticipated this response from the school.
“I hope that the school district will not send a message that being shot while teaching a lesson in class by a student is merely a hazard of the job,” Zwerner’s lawyer Diane Toscano said in a written notice of intent to sue, issued on Jan. 25.
After filing the lawsuit, Toscano told NBC News that the school board’s position is “unacceptable.”
“That is what they have maintained up until today, that it is just part of the job, an assumption of the job that a first grade teacher is going to be shot by their own student – a 6-year-old,” Toscano told the Today Show on April 4. “That is unacceptable. That is outrageous.”
Police have opted not to pursue criminal charges against the boy, but his mother, Deja Taylor, has been charged with felony child neglect and recklessly leaving a loaded firearm to endanger a child, a misdemeanor.
You can read the complaint via Norfolk ABC affiliate WVEC here.
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