Newport News School Board lawyers call Richneck shooting a ‘workplace injury,’ say lawsuit should be tossed

When teacher Abigail Zwerner was shot by a 6-year-old student at Richneck Elementary School in early January, it was a “workplace injury” that arose from her job, lawyers for the Newport News School Board contend in a new filing.

As such, Zwerner’s pending $40 million lawsuit must be tossed and she should instead file a worker’s compensation claim for her injuries, the board’s lawyers maintain.

The attorneys, from the Virginia Beach law firm Pender & Coward, cite the “unfortunate reality” that teaching in the United States — even for first grade teachers like Zwerner — isn’t without its dangers.

“One cannot assess the state today of education-based employment in the United States without paying attention to the problem of violence in its classrooms,” the filing says. “What may be surprising is that across the country teachers themselves are common targets of violent behavior by students.”

The news media have highlighted this reality in its coverage, the lawyers say, citing examples across the country of teachers being hospitalized after attacks by students.

“It’s no secret that violence seems to be on the rise in schools, especially at the elementary level,” according to a 2019 quote from an education website called WeAreTeachers cited in the filing. “Teachers report more aggressive behavior than ever before.”

According to a recent report from the U.S. Department of Justice’s National Institute of Justice, also cited by the filing, half of schoolteachers today “have experienced student perpetrated violence.”

The filing cites the National Center for Education Statistics, saying 192,500 public school teachers were physically attacked by students in a 12-month period in 2015-16. That includes 153,700 elementary school teachers, or more than 9%.

The filing, submitted by attorney Anne C. Lahren, asks that a Newport News Circuit Court judge throw out Zwerner’s lawsuit before it gets off the ground.

“Zwerner’s injuries fall under the exclusive coverage of Virginia’s Workers’ Compensation Act ... which bars Zwerner from maintaining a (lawsuit) against the School Defendants for the injuries she sustained in the course of her employment as a first-grade teacher with Newport News Public Schools,” the filing maintains.

Attorneys for Zwerner — Diane Toscano, Jeffrey Breit and Kevin Biniazan — released a statement Thursday, saying that “no one believes” that getting shot by a 6-year-old would be an expected risk of teaching first grade.

“The school board’s position is contrary to how every citizen in Newport News thinks teachers should be treated, and the law does not support the board’s position,” they wrote. “Teachers across the district will be alarmed to learn their employer sees this as part of the job description.”

The board’s raising of a worker’s compensation defense was not a surprise, and Zwerner’s attorneys appeared to allude to the likelihood of such a defense in their “notice of claim” before the lawsuit was even filed.

In the March 15 notice, Toscano asserted that the division’s response to the forthcoming lawsuit would “shed a light on how it views its teachers.”

“I hope that the school district will not send a message that being shot while teaching a lesson in class by a student is merely a hazard of the job,” she wrote at the time.

Pender & Coward also represents former Newport News Superintendent of Schools George E. Parker III — who was firedin late January — and former Richneck Principal Briana Foster Newton, who was moved to a different job within the school division. The law firm is asking that claims against the pair likewise be tossed.

Another defendant at the crux of the lawsuit’s claims, former Richneck Assistant Principal Ebony Parker, is being represented separately.

Zwerner, of York County, contends the first grader’s alarming past behavior should have led to heightened safety precautions at the school. Instead, the complaint says, Ebony Parker ignored three stark warnings that the boy had a gun.

Ebony Parker would not even look at Zwerner, 25, when she expressed concerns about how the 6-year-old was acting that morning, the complaint says. And she wouldn’t allow the boy to be searched even after other students told teachers the boy had a gun — including a first-grader who said the boy showed him the gun at recess.

Failing to act on the urgent threat, the lawsuit says, shows “a reckless disregard” for the safety of students, teachers and others on the premises.

In the first grade classroom just before 2 p.m. — as Zwerner. 25. sat at a reading table and the boy at his desk — he suddenly pulled a gun out of his front hoodie pocket, pointed at his teacher and fired a single round.

The bullet went through Zwerner’s left hand — which she held up as the boy opened fire — and then struck her in the upper chest and shoulder, where it remains today. She managed to shuttle about 18 students out of the classroom before seeking help.

The boy’s mother, Deja Taylor, 25, now faces charges of felony child neglect and a misdemeanor count of allowing access to a firearm by children. She maintains the gun was secured by a trigger lock and stored out of reach of the child in a bedroom closet.

According to the filing from the School Board’s lawyers, the Virginia Supreme Court has recognized the Workers Compensation Act as a “quid pro quo” bargain for workers in Virginia.

That is, they can receive claims for no-fault liability on their employers but give up the right to sue the same employers in court for negligence. On the other hand, the injury must stem from a workplace accident or arise “out of and in the course of employment or occupational disease.”

Moreover, the case law says there must be “a causal connection between the claimant’s injury and the conditions under which the employer requires the work to be performed.”

In this case, the filing says, “there is no evidence that (the boy and Zwerner) knew each other outside of the teacher/student relationship.”

School was in session at the time of the shooting, with Zwerner sitting at her reading table in a classroom, with the boy at his desk.

“Teaching and supervising students in her first grade class was a core function of (Zwerner’s) employment,” the filing says. Thus, the filing contends, her injuries “arose out of and in the course of her employment” and fall under the Virginia’s Workers’ Compensation Act.

The filing contends that a Newport News Circuit Court judge should dismiss Zwerner’s complaint “for lack of subject matter jurisdiction.”

It’s not immediately clear when the response from Zwerner’s attorneys is due.

Peter Dujardin, 757-247-4749, pdujardin@dailypress.com