An elementary school teacher’s gunshot injury doesn’t fall under workers’ compensation exclusivity provisions, according to a circuit court judge, so her $40 million lawsuit against the school district can proceed.
The judge ruled that the shooting by a six-year-old student at Richneck Elementary School in Newport News, Virginia was personal and didn’t arise out of the teacher’s employment.
6-year-old student shot her in the shoulder
Abigail Zwerner was breaking her first-grade class into reading groups after recess at about 2 p.m. on Jan. 6, 2023, according to The Virginian-Pilot. A six-year old student pulled a handgun out of his front hoodie pocket and pointed it at Zwerner, who was sitting about 10 feet away from him. The boy fired a single shot that went through Zwerner’s left hand and into her shoulder.
She was released from the hospital 10 days later, but the bullet is still lodged in her shoulder.
‘Past behavior should have led to heightened safety precautions’
Zwerner filed a lawsuit against the Newport News school district on April 3, 2023, arguing that the student’s “past behavior, such as choking another teacher and whipping other students with a belt, should have led to heightened safety precautions at the school.”
The lawsuit contends that instead of taking extra precautions, the school’s assistant principal ignored warnings that the boy had a gun the day the shooting occurred. Zwerner claims the assistant principal refused to allow the boy to be searched despite another student telling a teacher the boy showed him a gun at recess.
Judge: Boy specifically targeted his teacher
The Newport News School Board fought the lawsuit, arguing that Zwerner’s sole remedy was workers’ compensation because the incident was job-related.
Newport News Circuit Court Judge Matthew Hoffman disagreed.
“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 in his decision. “The danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher in a class.”
Hoffman ruled that the assault was personal to Zwerner, meaning that it didn’t arise by nature from her employment.
As an example, Hoffman noted that the boy had slammed Zwerner’s cell phone down two days before the shooting, which led to the boy being suspended from school. Then, on the day of the shooting, he waited until he was back in Zwerner’s classroom to shoot her.
“He did not at any time threaten any other student, teacher, or administrator at the school with the firearm,” Hoffman said. “The shooting was ‘personal’ and was directed against Plaintiff.”
