Attorneys representing a Virginia school board are asking a judge to dismiss Abigail Zwerner’s $40 million lawsuit over her shooting at the hands of a 6-year-old student, claiming that she only deserves workers’ compensation because she was injured on the job.
The Newport News School Board argued in a motion filed Wednesday that Zwerner’s injuries cannot be addressed through civil litigation because the first-grade teacher was “clearly injured while at work, at her place of employment, by a student in the classroom.”
Considering the circumstances of the incident, Zwerner’s injuries fall under Virginia’s workers’ compensation act, lawyers representing the board wrote.
The school board also rejected Zwerner’s claim that she could reasonably expect to work with young children who pose no danger.
“While in an ideal world, young children would not pose any danger to others, including their teachers, this is sadly not reality,” the filing stated, pointing to acts of violence committed against teachers across the US.
Zwerner, 25, was shot in the hand and chest on Jan. 6 as she sat at a reading table in her first-grade classroom at Richneck Elementary.
She spent nearly two weeks in the hospital, has had four surgeries, and told Savannah Guthrie on NBC’s “Today” in March that she still has a part of a bullet lodged in her chest, months after the shooting that she said changed her life.
Zwerner was approved for workers’ compensation, which covers injuries “without having to prove negligence,” the school board said Wednesday.
It provides up to 500 weeks of compensation and lifetime medical care for injuries.
But Zwerner has turned it down, the board said.
Instead, she filed her lawsuit earlier this month, accusing school officials of gross negligence and of ignoring multiple red flags on the day of the shooting.
Zwerner’s attorneys maintained that Richneck Elementary administrators knew the boy “had a history of random violence” at school and at home, including an episode the year before when he “strangled and choked” his kindergarten teacher.
School officials sent the boy to another school, but allowed his return for first grade in fall 2022, Zwerner’s lawsuit states.
The complaint says the 6-year-old was placed on a modified schedule “because he was chasing students around the playground with a belt in an effort to whip them,” and was cursing staff and teachers.
“Teachers’ concerns with John Doe’s behavior (were) regularly brought to the attention of Richneck Elementary School administration, and the concerns were always dismissed,” the lawsuit reads.
In its filing Wednesday responding to the lawsuit, the school board challenged Zwerner’s claims that the child should not have remained in her class.
The boy was in the process of being evaluated and treated for possible ADHD, the school board argued.
If he had been found in need of additional services, state and federal laws would have applied “for the purpose of keeping such children in the classroom with their peers when possible,” according to the filing.
The child’s family has previously said he was under a care plan that included his mother or father accompanying him to class every day.
The week of the shooting was the first when a parent was not in class with him.
Zwerner’s lawsuit describes a series of warnings school employees gave administrators in the hours before the shooting, beginning with Zwerner, who told an assistant principal that the boy “was in a violent mood,” had threatened to beat up a kindergartner and stared down a security officer in the lunchroom.
Two students later told a reading specialist that the first-grader had a gun in his backpack, the lawsuit states.
Zwerner said she saw the boy take something out of his backpack and put it into his sweatshirt pocket.
A search of his backpack found no weapon, and the assistant principal said the boy’s “pockets were too small to hold a handgun and did nothing,” Zwerner’s complaint alleges.
In its response, the school board argued that Zwerner’s lawsuit “strategically focuses on the use of a handgun as opposed to some other weapon with less perceived notoriety and shock value.”
“If the allegations in the complaint substituted ‘sharp scissors’ for ‘gun’ and John Doe stabbed (Zwerner) in the neck in the classroom, there would be no doubt that the injury would fall under workers’ compensation,” the school board argued.
The boy shot Zwerner with his mother’s legally purchased gun.
And while the minor won’t be prosecuted, his mother, 25-year-old Deja Taylor, was arrested earlier this month and charged with felony neglect and reckless storage of a firearm.
With Post wires
