A Newport News judge ruled a lawsuit from a teacher shot by her student in January can proceed in the courts.
"This victory is an important stepping stone on our path towards justice for Abby," attorneys Diane Toscano, Jeffrey Breit and Kevin Biniazan wrote in a statement. "We are eager to continue our pursuit of accountability and a just, fair recovery. No teacher expects to stare down the barrel of a gun held by a six-year-old student.”
Abby Zwerner filed a lawsuit in April against the Newport News school board, the district’s former superintendent, George Parker, the former Richneck Elementary assistant principal and principal. She’s seeking $40 million in damages.
In it, lawyers argue what happened to Zwerner isn’t a risk someone could reasonably anticipate as a first-grade teacher.
The suit also alleges school administrators were warned several times that the student who shot Zwerner had a gun and were negligent and failed to address the known threat.
The child was prone to random violence, Zwerner’s lawsuit alleges, and several school staff members told administrators the child may have had a weapon the day of the shooting.
Lawyers for the schools said in a filing to dismiss the suit that Zwerner should file a worker’s compensation claim, not pursue legal recourse.
“(Zwerner) 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,” the filing reads.
“Teaching and supervising students in her first grade class was a core function of (Zwerner’s) employment. Thus, (Zwerner’s) injuries arose out of and in the course of her employment and fall under Virginia’s Workers’ Compensation Act.”
The ruling is a surprise for Rip Verkerke, a University of Virginia law professor and expert in the state's workers' compensation laws.
He says the judge's ruling Friday is at odds with much of the existing case law. Virginia's workers' compensation law is uniquely stringent and courts have held that the compensation system is the only remedy for workplace injuries with very little exception.
Verkerke said the judge's view of this incident as a personal attack unrelated to Zwerner's work may not hold water with higher courts.
"It is deeply regrettable that Ms. Zwerner might be limited to the narrow remedies of the workers’ compensation system, but Virginia precedent surely gives the School Board reason to hope for reversal of the trial court’s ruling," he said in an email Friday evening.
Other legal proceedings related to Richneck shooting
As Zwerner’s lawsuit proceeds, sentencing for state and federal charges against the child’s mother have been delayed.
A grand jury indicted Deja Taylor for two charges in April: One for child abuse and neglect and one for leaving a loaded weapon accessible to a child. The second charge was dropped in August. Taylor pleaded guilty to the child abuse and neglect charge.
She was scheduled to be sentenced in Newport News Circuit Court on the abuse and neglect charge this week, but it was continued to December, after she is scheduled to face sentencing on two federal charges.
Taylor pleaded guilty in federal court in June for illegally obtaining and possessing a firearm and making a false statement on a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form to purchase the firearm.
Sentencing for those charges were also scheduled this month, but moved to November.
Taylor’s lawyer, James Ellenson, said in Augustattorneys are considering an agreement that would limit Taylor’s federal sentencing to no more than two years in prison and no more than six months in jail for the state charges.
Ellenson said he believes Taylor should get no jail time given mitigating factors he planned to present at sentencing hearings, which includes issues of domestic abuse, post-partum depression, anxiety and experiencing a series of miscarriages.
Note: Newport News Public Schools are a member of HRETA, which holds WHRO’s license.
