Virginia School: As Violence Is Workplace Condition, Workers’ Comp Bars $40M Suit by Teacher Shot by 6-Year Old

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The Newport News public school board says the $40 million lawsuit filed against it by the teacher who was shot by a six-year old is barred by the state’s workers’ compensation law that is the exclusive remedy for workplace injuries.

The Virginia board argues in its court filing in reply to first grade teacher Abigail Zwerner’s lawsuit that violence against teachers is not uncommon and has become part of the workplace. It cites reports of incidents of violence in classrooms in Newport News and across the country.

“While in an ideal world, young children would not pose any danger to others, including their teachers, this is sadly not reality,” the filing states.

The board argues that physical assaults against an employee as in this case fall under the Virginia Workers’ Compensation Act.

Workers’ compensation is Zwerner’s remedy, the school board claims, because workplace conditions were a “direct and proximate cause of the attack” on her on January 6, 2023, and that she was acting in furtherance of her employment when the student, who is referred to as John Doe in court documents, shot and injured her.

“Plaintiff was clearly injured while at work, at her place of employment, by a student in the classroom where she was a teacher, and during the school day. Teaching and supervising students in her first grade class was a core function of Plaintiff’s employment. Thus, Plaintiff’s injuries arose out of and in the course of her employment and fall under Virginia’s Workers’ Compensation Act unless an exclusion applies,” the school board asserts.

The Newport News school administration contends that in her attempt to circumvent workers’ compensation, Zwerner has focused on the use of a handgun as opposed to some other weapon with “less perceived notoriety and shock value.” The filing maintains that if the allegations substituted “sharp scissors” for “gun” and John Doe stabbed her in the neck in the classroom, “there would be no doubt “that the injury would fall under workers’ compensation. “The handgun is the classic “red herring.” And this, too, falls under Virginia’s Workers’ Compensation Act.”

According to the filing, Zwerner has declined workers’ compensation benefits available to her under the statute.

Earlier this month Zwerner sued the board, former Superintendent Dr. George Parker, III, and others in tort for damages, accusing them of gross negligence for allegedly ignoring multiple warnings on the day of the shooting that the boy had a gun and was in a “violent mood.”

According to her complaint, Zwerner suffered permanent bodily injuries, physical pain, mental anguish, lost earnings and other damages. She is seeking $40 million in compensatory damages.

Zwerner’s complaint claims that all of the defendants knew the child “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. Zwerner alleges that the school administrators knew that John Doe attacked students and teachers alike.

In its move to have the lawsuit dismissed in favor of a workers’ compensation remedy, the school board contends that the problem of rising violence against teachers extends to elementary schools, citing as one example a 2022 Florida incident in which a female teacher was attacked by a five-year-old student. Also, according to the U.S. Department of Justice’s National Institute of Justice report from February 2022, over half of teachers have experienced student-perpetrated violence.

The board also cites a report from the National Center for Education Statistics showing that approximately 327,000 public school teachers were threatened with injury by a student in 2015-2016, including 182,100 or 10.8% of elementary public school teachers. Over the same years, 192,500 public school teachers were physically attacked by a student.

According to the filing, reports from the Occupational Safety and Health Administration (OSHA) show that Newport News Public Schools have also experienced similar incidents of threats and attacks by student resulting in injuries, restricted duty, and days away from work. It refers to examples of Newport News elementary school student assaults on teachers include “hitting, kicking, biting, tripping, punching to the face and/or stomach, throwing items and furniture, including desks, books, water bottles, and even sharpened pencils, in addition to pushing, shoving, and the like. ”

Zwerner’s lawsuit alleges the school administrators were negligent in allowing the six-year old child with a history of behavioral problems back in the school without supervision,

However, the board defends the presence of the six-year old child in the school. It cites a mixture of federal and state laws granting all children, including children with disabilities, the right to a public education, and laws to keep students with problems in the classroom with their peers.

“Children who exhibit behavioral challenges in school are still entitled to a free appropriate public education under state and federal law. Diagnosing and creating an appropriate educational plan for the student takes time and requires certain specific steps and documentation. Under the circumstances presented here, Plaintiff implies that John Doe should never have been allowed to re-enroll in Richneck Elementary School based on his behavior the previous year in kindergarten. Every child, including John Doe, is entitled to due process in education,” the school board asserts.

The board said that as a result of behavioral issues, John Doe had a personalized schedule for the start of the 2022-2023 school year. Then because of his “improved behavior and progress,” those responsible for his education, including Zwerner, agreed that following winter break John Doe’s day would be extended and the previous parental presence requirement would not always be necessary.

“Plaintiff was in full agreement with this assessment. She had already raised that John Doe’s improvement in the class setting warranted an extended school day and other modifications,” the school board maintains. It says Zwerner was “well-aware of John Doe’s history and behavioral challenges” through her role as a teacher and a member of his services team.

On January 4, 2023, the first day back from winter break, John Doe grabbed the Zwerner’s phone and broke it when he was not given something he wanted. The school notified John Doe’s mother and suspended him for January 5, 2023. On January 6, 2023, John Doe returned to school following the pre-agreed protocol put in place by the educators, including Zwerner. Apparently, however, he had secretly taken his mother’s handgun to school and the same afternoon he shot and wounded Zwerner.

Last month, Newport News prosecutor Howard Gwynn said his office will not criminally charge the boy because he wouldn’t understand the legal system and what a charge means. On April 12, however, a grand jury indicted the 25-year old mother of the boy on charges of child neglect and failing to secure her handgun in the family’s home.

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