LAWYERS SPAR OVER RICHNECK LAWSUIT
Judge to decide if ex-teacher’s shooting injury should go to trial or worker’s comp
NEWPORT NEWS — Should Abigail Zwerner — the firstgrade teacher shot by a 6-year-old student at Richneck Elementary School in January — be entitled to move forward with a lawsuit contending the Newport News Public Schools failed to keep the schools safe?
Or should her injury be relegated to a Worker’s Compensation claim alone?
That was the subject of a debate Friday in Newport News Circuit Court during a hearing that delved into the history of Worker’s Compensation claims in Virginia and prior court decisions about it.
Circuit Court Judge Matthew W. Hoffman took the matter under advisement, telling both sides he would issue a decision — and a written opinion — within a week.
The losing side is expected to appeal.
Zwerner, 25, didn’t testify Friday, but attended the hearing, sitting with her lawyers. It’s the first time she’s appeared in court, either in her civil lawsuit or in separate criminal proceeding against the boy’s mother, Deja Nicole Taylor.
Taylor initially was scheduled to be sentenced Friday on a child neglect charge in the case, but that hearing was pushed off until December.
About 2 p.m. on the day of the shooting, the 6-year-old was sitting at his desk when he suddenly pulled a gun out of his front hoodie pocket, pointed it at Zwerner — seated at a reading table less than 10 feet away — and fired a single round. The bullet went through her hand — which she held up as the boy fired — and then struck her in the upper chest and shoulder, where it remains today.
She was released from the hospital about 10 days later.
In a $40 million lawsuit filed in April, Zwerner contends the first-grader’s alarming past behavior should have led to heightened safety precautions at the school. Instead, the complaint says, Richneck’s assistant principal, Ebony Parker, ignored three stark warnings that the boy had a gun.
If the case moves forward, any potential damages to Zwerner could be determined by a jury or a negotiated settlement. If the case goes to Worker’s Compensation Act, the lawsuit would be dismissed. Zwerner would instead be entitled to two-thirds of her salary — tax free — for nine years and eight months. She’d also be entitled to free medical benefits for life.
Anne Lahren, an attorney representing the Newport News School Board and two administrators, asserted that the Circuit Court doesn’t have “subject matter jurisdiction” over the case, and that it must be sent to Worker’s Comp.
“This was a workplace injury,” Lahren said. “It occurred during the school day, in the classroom. John Doe was in her classroom, and she was teaching.”
Zwerner had no contact with the boy outside of school, Lahren said, and every interaction between them arose from the teacher-student relationship.
“Her employment puts her in this position with John Doe,” Lahren said. There’s no evidence she ever saw him out of school.”
But an attorney for Zwerner, Kevin Biniazan, contended that just because the shooting happened during the course of her employment doesn’t make it a workplace injury. Many disputes between people begin at work — such as two co-workers involved in a heated argument — but that doesn’t mean the disagreement stems from the job itself, he said.
Another attorney for Zwerner, Diane Toscano, contended that getting shot and wounded by a student was not an “actual risk” inherent to Zwerner’s job.
The highly unusual nature of what happened, Toscano said, is exactly why the case has generated wide public interest. But the risk, the lawyer maintained, “wasn’t so unique to her job that it was any different from what she faced outside of school.”
“No first grade teacher would expect anything like this,” added Jeffrey Breit, another lawyer on Zwerner’s team. “It was never a condition of her employment that she be faced with this particular danger.”
But School Board attorneys contend a lack of such an expectation doesn’t mean the case can now go to trial.
There’s nothing in Virginia law, Larhren maintained, that requires a job hazard to be “expected, anticipated or reasonably able to be seen” before going to Worker’s Comp. In this case, she said, the boy actually “was a known dangerous hazard at the place of employment,” having had many other run-ins and issues with students and teachers in his short time in school.
Another way around the Worker’s Comp mandate is if an injury arises from a personal issue rather than a workplace one.
The School Board’s lawyers maintain the shooting wasn’t personal.
But Zwerner’s lawyers contend the shooting was not random. The boy threw Zwerner’s cellphone to the ground and broke it a couple of days earlier, they pointed out. Moreover, they say, the boy encountered several other students and teachers while armed on the day of the shooting — but waited until he was in class to shoot Zwerner.
Hoffman said at the end of the arguments that the case is an important one for both sides as well as for the public. He said he didn’t want to rule from the bench but would issue a ruling within a week’s time. Zwerner, who resigned her position at Richneck in June, did not speak with the media after the hearing.