When teacher Abigail Zwerner was shot by a 6-year-old student at Richneck Elementary School in early January, it was a “workplace injury” that arose from her job as a teacher, lawyers for the Newport News School Board contend in a new filing.
As such, Zwerner’s pending $40 million lawsuit must be tossed and she should instead file a worker’s compensation claim to get any compensation for her injuries, the board’s lawyers maintain.
The attorneys, from the Virginia Beach law firm Pender & Coward, cite the “unfortunate reality” that teaching in the United States — even for first grade teachers like Zwerner — isn’t without its dangers.
“One cannot assess the state today of education-based employment in the United States without paying attention to the problem of violence in its classrooms,” the filing says.
“What may be surprising is that across the country teachers themselves are common targets of violent behavior by students.”
The news media have highlighted this reality in its coverage, the filing says, citing examples across the country of teachers being attacked and hospitalized by students.
“It’s no secret that violence seems to be on the rise in schools, especially at the elementary level,” according to a 2019 quote from an education website called WeAreTeachers cited in the filing. “Teachers report more aggressive behavior than ever before.”
According to a recent report from the U.S. Department of Justice’s National Institute of Justice, cited by the court filing, half of schoolteachers today “have experienced student perpetrated violence.”
The filing cites the National Center for Education Statistics, saying 192,500 public school teachers were physically attacked by students in a 12-month period in 2015-2016, including 153,700 elementary school teachers, or more than 9 percent of them.
The filing asks that a News Circuit Court judge throw out Zwerner’s lawsuit before it really gets underway.
“Zwerner’s injuries fall under the exclusive coverage of Virginia’s Workers’ Compensation Act … which bars Zwerner from maintaining a (lawsuit) against the School Defendants for the injuries she sustained in the course of her employment as a first-grade teacher with Newport Public Schools,” the filing says.
Attorneys for Zwerner — Diane Toscano, Jeffrey Breit and Kevin Biniazan — did not have an immediate response to the filing.
But the board’s raising of the worker’s compensation issue was not a surprise to lawyers following the case, and Zwerner’s attorneys appeared to allude to the likelihood of such a defense in their “notice of claim” before the lawsuit was even filed.
In the March 15 notice, Toscano asserted that the division’s response to the forthcoming lawsuit would be “very important and would shed a light on how it views its teachers.”
“I hope that the school district will not send a message that being shot while teaching a lesson … is merely a hazard of the job,” she wrote at the time.
“The city’s teachers need to know that this is not an acceptable risk, that the school district cares for them, and that these failures to act will not happen again.”
Aside from representing the School Board, Pender & Coward also represents former Newport News Superintendent of Schools George E. Parker III — fired by the board in late January — and former Richneck Principal Briana Foster Newton, who has moved to a different job within the school division.
The firm is asking that the claims against the former superintendent and principal be tossed, too.
Another defendant in the case, Richneck Assistant Principal Ebony Parker, is being represented separately.
Zwerner, 25, of York County, contends the first grader’s alarming past behavior should have led to heightened safety precautions at the school. Instead, the complaint says, Ebony Parker ignored three stark warnings that the boy had a gun.
Parker would not even look at Zwerner when she expressed concerns about how the 6-year-old was acting that morning, the complaint says. And she wouldn’t allow the boy to be searched even after other students told teachers the boy had a gun.
Failing to act on the urgent threat, the lawsuit says, shows “a reckless disregard” for the safety of students, teachers and others on the premises.
In the first grade classroom just before 2 p.m. — as Zwerner sat at a reading table and the boy at his desk — he suddenly pulled a gun out of his front hoodie pocket, pointed at his teacher and fired a single round.
The bullet went through Zwerner’s left hand — which she held up as the boy opened fire — and then struck her in the upper chest and shoulder, where it remains today. She managed to shuttle about 18 students out of the classroom before seeking help.
The boy’s mother, Deja Taylor, 25, now faces charges of felony child neglect and a misdemeanor count of allowing access to a firearm by children. She maintains the gun was secured by a trigger lock and stored out of reach of the child in a bedroom closet.
According to the filing from the School Board’s lawyers, the Virginia Supreme Court has recognized the Workers Compensation Act as a “quid pro quo” bargain for workers in Virginia.
That is, they can assert no-fault liability to their employers but give up the right to sue the employers for negligence.
On the other hand, the injury must arise from a workplace accident or “arising out of in the course of employment” or from “occupational disease.”
The case law says there must be “a causal connection between the claimant’s injury and the conditions under which the employer requires the work to be performed.”
In this case, the filing says, “there is no evidence that (the boy and Zwerner) knew each other outside of the teacher/student relationship.”
At the time of the shooting, class was in session and Zwerner was sitting at her reading table in a classroom, with the boy at his desk.
“Teaching and supervising students in her first grade class was a core function of (Zwerner’s) employment,” the filing says. Thus, the filing says, her injuries “arose out of and in the course of her employment” and fall under Virginia’s Workers’ Compensation Act.
The filing contends that the Circuit Court judge should dismiss Zwerner’s complaint “for lack of subject matter jurisdiction.”
It’s not immediately clear when the response from Zwerner’s attorneys is due.