Teacher shot by 6-year-old

The first grade teacher at Richneck Elementary School who was shot in January by a 6-year-old pupil can move forward with her $40 million lawsuit against the school division, a judge in Newport News Circuit Court decided on Friday.

Judge Matthew W. Hoffman's decision stated that Abigail Zwerner, 25, is not restricted to bringing a Workers' Compensation claim, contrary to what the attorneys representing the Newport News School Board and other defendants had claimed.

In the eight-page ruling, Hoffman stated, "The Court finds the injury suffered by Plaintiff did not arise out of her employment." He stated that the defendants' request to dismiss the matter "is denied."

According to long-standing Virginia legislation, workers' compensation claims are exclusively handled by the Workers' Compensation Act, and they are not permitted to pursue claims through

This win is a critical first step in getting Abby the justice she deserves," a statement from attorneys Diane Toscano, Jeffrey Breit, and Kevin Biniazan said. We can't wait to keep pursuing responsibility and a just and equitable recovery. No instructor ever plans to confront a youngster, age 6, who is holding a pistol.

It is anticipated that the Virginia Court of Appeals will hear an appeal from the Newport News School Board and the other defendants, and the case may finally come before the state Supreme Court. The scheduling of a trial could be greatly delayed by such an appeal. The seven-day jury trial isn't actually scheduled until January 2025, according to the docket.

Anne Lahren stated, "Obviously, we're surprised about this and we disagree with the ruling."

According to Lahren, "it is regrettably a fairly common occurrence and one that is only increasing in frequency this day and age for teachers to be injured at the hands of students." Hoffman found that "it is clear that the student and Ms. Zwerner only knew each other through their teacher-student relationship," despite the fact that the shooting was caused by a personal dispute the child had with Zwerner.

Thus, Lahren argued, Worker's Compensation continues to be the only available legal remedy. "Therefore, we disapprove of Judge Hoffman's decision and fully expect the appellate court to reverse it."

On January 6, Zwerner was dividing her first-grade class into reading groups following recess at 2:00 p.m. While seated at his desk, the 6-year-old abruptly withdrew a handgun from his front

Zwerner's lawyers argue in the lawsuit filed on April 3 that the school should have increased safety measures in response to the child's concerning prior behavior, which included choking a different teacher and belt-whipping other students.

Rather, the lawsuit alleges that Ebony Parker, the assistant principal at Richneck and another defendant in the case, disregarded the boy's gun-related warnings on the day of the shooting. For instance, the lawsuit claims that during recess, a different student reported to a teacher that the boy had shown him a gun and had threatened to tell no one. Nevertheless, the complaint claims that Parker refused to let the boy be searched, in part because of the boy's tiny pockets.

The School Board filed a "plea in bar" on April 26. In it, they argued that Zwerner's rights were restricted to worker's compensation and that the Circuit Court lacked "subject matter jurisdiction" over the case.

The 1918 Virginia Workers' Compensation Act provides extensive protection for employees hurt at work due to illnesses or accidents. The law's protection of workers in accidents involving both fault and no fault is one of its main features.

Put another way, employees are protected even if their injuries were the result of their own carelessness.

However, there is a trade-off: employees have far less ability to sue their employers. They are not only unable to receive Worker's Compensation benefits but are generally prohibited from suing in the first place. This is a "legislative"

Hoffman wrote that in this instance, all parties are in agreement on two essential components.

According to the law, suffering an assault or even a gunshot wound qualifies as a "accident" since it was brought on by a "sudden... precipitating event." Furthermore, it was "during the course of her employment" because the shooting happened in Zwerner's classroom while she was a teacher.

However, Hoffman determined that the third element, which was that Zwerner's employment as a first-grade teacher "arose" from the shooting, was not proven. He claimed that doing so renders Worker's Compensation ineffective as a remedy and permits the lawsuit to proceed.

This Court rejects the notion that a gunshot wound is a "natural incident of the work" or that its genesis is "connected with the employment."

He continued, "Being a first-grade teacher in a classroom does not present a special or unique risk of being shot by a student."

Zwerner's employment as a first-grade teacher "does not come with the inherent risk" that bank teller employees, counselors for young people at risk, late-night gas station employees, or teachers of special needs students face. The judge mentioned all of those instances where judges determined that risks and injuries were a direct result of the work itself.

Furthermore, an assault does not automatically "arise from the employment" if it is "personal to the employee," according to Hoffman.

He mentioned that two days prior to the shooting, the 6-year-old had slammed Zwerner's cell phone.