Former Newport News teacher Abigail Zwerner, 26, was shot by a 6-year-old student in January and in October, won the right to bring a $40 million lawsuit against the district. (Toscano Law Group)
Beyond the arguments over whether a former Newport News teacher can sue for damages, or should instead be limited to the remedies in Virginia’s restrictive, century-old Workers’ Compensation Act, lies this reality:
No educator should ever be the victim of a shooting by a student – especially when the child is only 6 years old. Could he even spell “caliber”?
That the violence occurred is a stinging indictment of both our educational system and the upbringing of some children.
That, really, is at the heart of Abigail Zwerner’s bid to win $40 million against the Newport News School Board and other defendants. A first-grader shot and seriously wounded her at Richneck Elementary School in January. She was hospitalized nearly two weeks with injuries in her hand and shoulder, and she’s undergone several surgeries.
Thank goodness she wasn’t killed.
Zwerner, 26, alleged school officials had ignored warnings that the boy had brought a gun to school that day and was in a violent mood. He’d previously exhibited disciplinary problems on school grounds; the lawsuit, for instance, claimed he’d choked another teacher and whipped other students with a belt. (The boy’s mother later pleaded guilty to felony child neglect, but a charge of endangering a child by recklessly storing a gun was dropped.)
Circuit Court Judge Matthew Hoffman recently ruled Zwerner can continue her lawsuit instead of receiving only the benefits in the state’s workers’ comp system. The latter would provide up to nearly 10 years’ pay and lifetime medical care for her injuries.
“The Court finds the injury suffered by Plaintiff did not arise out of her employment,” the judge wrote. “ … Defendants have not met their burden to prove the Plaintiff’s injuries fall within the exclusive coverage of the Act.”
J.H. Verkerke, a University of Virginia law school professor, told me the “probability is high that the trial court’s ruling will be overturned on appeal.”
“The workers’ compensation system was designed to replace tort liability for workplace injuries,” he added by email, noting the law was enacted originally in 1918. “In exchange for relatively certain recovery without proving employer negligence, workers gave up the possibility of receiving compensation for pain and suffering or punitive damages.”
News stories, citing legal experts, also had predicted Zwerner’s suit would fail. The Associated Press reported: “Lawsuits that might move forward in other states often falter in the Commonwealth.”
That still could happen.
But the horror Zwerner suffered demands a re-evaluation of the stringent guidelines for workers’ comp in Virginia. Diane Toscano, Kevin Biniazan and Jeffrey Breit are representing her.
“The highest compensation permitted for Ms. Zwerner under the workers’ compensation remedies could never equate to a full and fair accounting for what has been taken from her,” her attorneys told me by email. “No recovery for her pain. No recovery for her mental anguish. No recovery that acknowledges the scope of injuries and the effect those injuries will have on her life tomorrow or for the rest of her life.”
Legislators and residents more than a century ago couldn’t have imagined the level of violence that occurs regularly in classrooms today. Here’s what I’m talking about:
Last month, the National Education Association, citing a 2021-2022 survey of 15,000 teachers, administrators and other staff, found one-third of teachers reported being threatened by a student within the previous year, including verbal threats, intimidation or sexual harassment. Some 14% percent of teachers said they had been victims of physical violence from students, NEA Today reported.
I was unable to find, though, how many 6-year-olds had brought guns to school and actually shot a school employee. My calls and emails to the NEA about such statistics weren’t returned.
Such incidents are probably rare, if not infinitesimal. It’s a circumstance most first-grade teachers can’t envision when entering their classrooms. It’s not a reasonable expectation for educators of very young children barely able to dress themselves.
Attorneys for defendants in the lawsuit, including Anne Lahren, said the circumstances of the shooting fall under the Workers’ Compensation Act guidelines. In a statement, they noted that a teacher being injured by a student “unfortunately, is a fairly common occurrence and one that is only increasing in frequency [in] this day and age.”
But being shot by a first-grader? That scenario is shocking.
When I asked Lahren whether she and her colleagues would seek a settlement, she told me – by email – they’re not discussing that possibility for now. Lahren added they “firmly believe this is a workers’ compensation case and that the appeals court will reverse the trial court decision.”
That could happen. A multimillion-dollar verdict or settlement, obviously, would send tremors throughout school divisions and governing bodies around Virginia.
We need a critical re-examination of workers’ comp protocols. An exemption for violent incidents – especially those on school grounds that should have been foreseeable – would force divisions to improve security and not tolerate certain behaviors.
Judges ultimately may order Zwerner to seek workers’ comp. Even if she’s allowed to plead her claims, she might win far less than $40 million.
She’s already made a significant contribution, though, to our knowledge about the dangers that teachers face.
Being shot by a 6-year-old – or any student – shouldn’t be an acceptable risk for educators.
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