A Virginia teacher shot by a 6-year-old can file a $40 million lawsuit, judge rules

NEWPORT NEWS, Va. – A teacher who was shot by her 6-year-old student in Virginia can move forward with its $40 million lawsuit against a school system over allegations of negligence by school leaders, a judge ruled Friday.

Newport News Circuit Court Judge Matthew Hoffman’s surprise decision means this Abby Zwerner could receive much more than just workers’ compensation for the serious injuries caused by the January classroom shooting.

Lawyers for Newport News Public Schools had tried to block the lawsuit, arguing that Zwerner was only entitled to workers’ compensation. It provides up to ten years of salary and lifetime medical coverage for injuries.

Zwerner’s lawyers countered that workers’ compensation doesn’t apply because a first-grade teacher would never expect to be shot: “There was no actual risk to her job.”

Hoffman sided with Zwerner and concluded that her injuries “were not attributable to her employment” and therefore “were not covered by the exclusive provisions of workers’ compensation.”

The judge wrote: “The risk of being shot by a student is not typical of the job of a first grader.”

Zwerner was hospitalized for nearly two weeks and underwent multiple surgeries after a bullet hit her hand and chest. Zwerner alleges that the administration ignored multiple warnings that the boy had a gun that day and routinely dismissed ongoing concerns about his troubling behavior.

“This victory is an important step in our path to justice for Abby,” Zwerner’s attorneys Diane Toscano, Jeffrey Breit and Kevin Biniazan said in a statement.

“We are committed to continuing our pursuit of accountability and an equitable recovery,” they said. “No teacher expects to be staring down the barrel of a gun held by a six-year-old student.”

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Zwerner no longer works for the school system. A preliminary hearing date for her lawsuit is scheduled for January 2025.

The school board’s attorneys indicated they would appeal Friday’s decision, saying in a statement that they “fully expect the appellate court to reverse it.”

The school board claimed that Zwerner’s injuries were directly related to her job and were therefore covered by workers’ compensation.

“The real employment risk in this scenario is that a teacher will be injured at the hands of a student, which is unfortunately a fairly common occurrence and is only becoming more common these days,” school attorney Anne Lahren said in a statement.

Some legal experts expected Zwerner’s lawsuit to fail because of Virginia’s unusually strict workers’ compensation law. This is because they involve workplace assaults and allegations of negligence against employers. Lawsuits that could advance in other states often fail in the Commonwealth.

JH Verkerke, a law professor at the University of Virginia, said Friday’s ruling was “somewhat surprising” given previous court decisions in Virginia.

“Virginia’s precedent certainly gives the school board reason to hope that the trial court’s ruling will be overturned,” Verkerke said.

In early January, the six-year-old pulled out his mother’s gun and shot Zwerner as she sat at a reading table in front of her first-grade class. She herded the other students into the hallway before collapsing in the school office.

The shooting sparked a national conversation about gun violence and rocked this military shipbuilding town near the Chesapeake Bay.

Zwerner sued in April, The alleged school officials ignored several warnings that the boy had a gun and was in a violent mood.

Police said the shooting was premeditated. Zwerner claims school administrators knew the boy “had a history of random violence” at school and at home, including when he “choked” his kindergarten teacher.

Verkerke, the law professor, said Zwerner’s lawyers would have to prove that the shooting had nothing to do with Zwerner’s job. Her challenge was to “somehow recognize that it was personal.”

In his ruling Friday, Judge Hoffman wrote that the shooting against Zwerner was “personal.”

Judge Hoffman noted that the boy had the gun with him from the start of the school day until just before dismissal.

“It was only when the student was back in (Zwerner’s) classroom that he decided to fire once, striking (Zwerner),” Judge Hoffman wrote. “At no time did he threaten another student, teacher or administrator at the school with a firearm.”

Zwerner’s lawyers argued in a brief statement last month that the boy’s violence was “random and directed at everyone, both inside and outside of school.”

He “claimed he was angry that people were ‘bullying’ his friend, a motivation that had nothing to do with (Zwerner),” her lawyers wrote without elaborating. “His motivation was personal.”

The school board disagreed, questioning that the shooting could have been unrelated to work.

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In response to the judge’s decision Friday, the school board’s attorneys said, “It is clear that the student and Ms. Zwerner knew each other only through their teacher-student relationship.”

“For a ‘personal’ act to defeat the exclusivity of the workers’ compensation law, that personal motive itself must not be related to…employment,” they wrote.

Workers’ compensation laws in the 20th century were considered a big deal between injured workers and employers, Verkerke said. In most cases, workers lost the ability to file lawsuits, shielding employers from huge payouts. But injured people were given much easier access to compensation—loss of wages and health insurance—without having to prove fault.

“I certainly agree with the idea that such an attack is not part of the ‘grand bargain’ underlying workers’ compensation law,” Verkerke said.

However, he said the facts in this case cast doubt on the conclusion that the shooting was a personal matter. The school board, he said, “would have significant grounds to appeal.”