Virginia elementary school teacher Abigail Zwerner on March 20, 2023.
The Virginia school district where a 6-year-old shot his teacher argues that her injuries fall under the state's workers' compensation act and cannot be addressed through her $40 million lawsuit, according to court documents filed Wednesday.
Abigail Zwerner was “clearly injured while at work, at her place of employment, by a student in the classroom,” the Newport News School Board stated in response to her lawsuit, which it wants dismissed.
The school board also rejected Zwerner's claim that she could reasonably expect to work with young children who pose no danger, pointing to numerous incidents of violence against teachers across the U.S. and in Newport News.
“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.
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 later told NBC that she sometimes “can’t get up out of bed.”
The child shot Zwerner with his mother's gun. And while the boy won't be prosecuted, his mother has been charged with felony neglect and reckless storage of a firearm.
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 refused to accept it, the board said. She filed her lawsuit in early April.
The school board's response to Zwerner's lawsuit is the latest fallout from the shooting, which sent shockwaves through Newport News, a shipbuilding city of about 185,000 people near the Chesapeake Bay.
Zwerner accuses school officials of gross negligence and of ignoring multiple warnings the day of the shooting.
Zwerner’s attorneys say school officials 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. It said he 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 states.
In its filing Wednesday, the school board pushed back against 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 — which causes inattention, hyperactivity and impulsivity, the school board argued.
The evaluation for possible attention-deficit/hyperactivity disorder was not complete, the board said. And even 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 with their peers when possible."
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 kindergartener and stared down a security officer in the lunchroom.
Other warnings included those from two students, who told a reading specialist the boy 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, the lawsuit said. 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 lawsuit states.
In its filing on Wednesday, the school board argues 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 argues.
The lawsuit names as defendants the Newport News School Board, former Superintendent George Parker III, former Richneck principal Briana Foster-Newton and former Richneck assistant principal Ebony Parker.
Wednesday's filing was on behalf of the board, George Parker and Foster-Newtown by attorney Anne C. Lahren of the law firm Pender & Coward.
Ebony Parker was not represented in the filing and has hired a separate attorney, whose response to Zwerner's lawsuit is not yet due.
