NEWPORT NEWS, Va. (CN) — A judge ruled Friday that Abigail Zwerner, a teacher shot by her 6-year-old student at Richneck Elementary School this past January, can continue with her case against Newport News Public Schools.
"This victory is an important stepping stone on our path towards justice for Abby," Zwerner's attorneys, Diane Toscano, Jeffrey Breit and Kevin Biniazan, said in a statement. "We are eager to continue our pursuit of accountability and a just, fair recovery."
The 25-year-old teacher filed suit this past April, seeking $40 million from the school system as well as Richneck's former principal, Briana Foster Newton, former assistant principal Ebony Parker and ex-superintendent George Parker on claims of gross negligence.
Zwerner says she told the assistant principal hours before the shooting that the boy was in a violent mood and was threatening another student. She claims Parker failed to respond and even refused to look up at Zwerner when she expressed her concerns.
The student has a lengthy history of behavioral issues dating to kindergarten, when he attempted to strangle a teacher.
Newport News Public Schools argued the exclusivity provision of Virginia's Workers Compensation Act barred Zwerner's personal injury claim. The act states that for a claim to be barred by the provision depends on whether the injury was an injury by accident, an injury within the course of employment or an injury that arises out of the injured person's employment.
An employee's injury must contain all three elements to bar the employee from pursuing a personal injury claim. Both sides agree that the injury happened by accident and occurred within the course of her employment, as she was shot in a classroom during a school day while teaching a reading lesson.
Where Zwerner and, ultimately, Judge Matthew Hoffman disagree is the assessment that her injury arose out of her employment.
"This court does not find that the injury of a gunshot wound is one of 'natural incident of the work' or its origin 'connected with the employment' of a first-grade teacher," Hoffman wrote in the 8-page order.
According to court documents, the student destroyed Zwerner's cellphone two days before the shooting, and he served a two-day suspension. Upon his return, the student — who brought his mother's pistol to school in his backpack — waited until he was back in Zwerner's classroom after recess to use the gun and did not threaten any other school employees.
The boy shot Zwerner in the chest and hand, causing a lung to collapse. Despite being critically wounded, Zwerner herded the other students out of the classroom and even managed to make her way to the front office before collapsing.
"I was terrified," Zwerner said in an interview with the "Today" show in March. "In that moment, my initial reaction was, 'your kids need to get out of here.'"
Hoffman found these facts to illustrate that the attack was personal. Virginia courts determine whether an injury is personal or employment-related on a case-to-case basis. In Herrera v. Simms, the court barred a 7-Eleven employee from pursuing personal injury claims, finding that her job came with the heightened risk of sexual assault due to the employee working late at night and early in the morning.
In this case, Hoffman agreed with Zwerner that a first-grade classroom is a far cry from a late-night gas station job. Her attorneys praised the ruling.
"No teacher expects to stare down the barrel of a gun held by a 6-year-old student," Toscano, Breit and Biniazan said in a statement.
Zwener has undergone at least four surgeries. The boy's mother, Deja Taylor, pleaded guilty to felony child neglect in August. The boy, who is now in the custody of his great-grandfather, will not be criminally charged, Newport News Commonwealth Attorney Howard Gwynn has said.
A tentative trial date in Zwerner's case is scheduled for January 2025.
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