There was a major and somewhat surprising ruling in the case of Abigail Zwerner, the elementary school teacher who was shot by a 6-year-old student in January. Zwerner sued the school district for $40 million after learning that school officials knew that the child had brought a gun to school that day and that the child had previously threatened teachers. Newport News Circuit Court Judge Matthew Hoffman ruled that Zwerner was not confined to recovery under worker’s compensation because the shooting did not fall within the scope of her employment.
Zwerner spent two weeks in the hospital and later resigned from Richneck Elementary School before suing the school. District counsel argued that the complaint should be dismissed since her injuries were covered exclusively under worker’s compensation:
“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.”
What was likely infuriating for Zwerner was the added claim that this was all part of “educating John Doe through his behavioral evaluation and educational journey.”
The “journey” led to being shot in the torso and hand after asking the gun-wielding student, “What are you doing with that?”
Judge Hoffman disagreed and held that “The danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher.”
The district will now appeal and could well prevail under the Virginia Worker’s Compensation Act. The question is whether this was a “personal” attack directly at Zwerner or a more general threat against everyone in the school.
Code § 65.2-307(A) provides, in pertinent part: “the rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, [or] his personal representative … on account of such injury … or death. ” It is designed to be the exclusive remedy for employees. Taylor .v Posey, No. 1042-22-4, 2023 WL 5021240, at *3 (Va. Ct. App. Aug. 8, 2023).
The courts have looked simply at whether “an injury is subject to the exclusivity provision of the Act if it is the result of an accident and arises out of and in the course of the employment.” Combs v. Va. Elec. & Power Co., 259 Va. 503, 508, 525 S.E.2d 278, 281 (2000). The court treated this as a directed personal attack, which an appellate court may find unsustainable given the purpose of the act.
Here is the decision: Zwerner.Opinion.Order.11.3.23
How many lawyers does it take to decide what to do when the school staff lets a six year old carry a gun and he shoots his teacher?
Lordy…
In most elementary schools, when a kid is caught chewing gum (not gun),it is taken away from him. But in this case, due to “equity” the staff did not have sufficient vocabulary to articulate a conversation using the word “gun” (not gum). Thus, they could do nothing due to confusion between the approved word “gum” vs the cancelled word “gun”. This contradiction left them with no tools beyond pantomine which was inadequate.
This is a common oversight in education in a idiocracy.
Tort law is older than Workers compensation law, and far more fundimental.
While I think a 40M award is excessive, This teacher was injured at school, and the school had a duty that it clearly failed to provide a safe working envirnoment. Worse still assuming the facts as Turley expressed them – the school district was aware of the problem and did nothing – that is negligence.
I do not expect perfection from employers, but everyone should have the right to recover some damages if they are shot through no fault of their own, doing something they were legitimately allowed – even obligated to do.
If you are invited to a friends house – and they know their 6 year old has a gun and they do nothing and the 6 year old shoots you – then they are liable. The same is true of a workplace.
This is not about guns, about schools, about employment – it is about negligence.
One of our rights is the right to be made whole if we are harmed through the negligence of another.
If unemployment laws infringe on that right – then they do so improperly.
While a $40M award is excessive – this is still a case the plaintiff should win on principle.
“… the plaintiff should win on principle.” Yes, and if found guilty of negligence, the Principle should pay damages from his/her/xir own funds, including any pension monies; NOT the taypayers who didn’t act in any way that lead the teacher to be injured.
We need to make ownership of handguns by 6 year olds illegal, right libs ?
The American republic ended during the Bush Administration – there is no longer any sovereign immunity or constitutional due process. America no longer has a constitutional rule of law.
America is now pure authoritarian, officials do what they want to regardless of legal or constitutional restraints.
On that note, Turley might want to address the squandered taxpayer resources used by “Fusion Centers” (unconstitutional blacklisting centers in every state).
The money spent on unconstitutional practices, by Fusion Centers, is enough taxpayer money to put a metal detector in every public school and provide sufficient police protection.
For at least 15 years, Fusion Centers have had the capability to protect every school in America and to prevent most mass shootings – they simply focused on the wrong threats for over 15 years.
Fusion Centers have played a key role in destroying innocent Americans (probably exceeding 40,000 lives destroyed). Congress, the DOJ and DHS fund these illegal programs with your tax dollars.
If teachers are required to face the same risks as police officers, teachers deserve the same protective equipment as police officers – metal detectors, personal protective equipment and maybe allow some teachers to be armed.
Longterm a cheaper option is maybe start incentivizing work ethic and in-person social skills with our next generation of kids. Why not offer college credits, etc. for kids working part-time and summer jobs?
Some of the comments here are pure legal pedantry. Why does a child this age have a gun? Why are so many of you so unwilling to talk about parenting trends of the past couple of decades? I’ve sad it before and i’ll say it again: Conservatives seem to think they are doing something elevated with their kids, but I am here to assure you that they have been just as babied and are just as low. This is something we are going to have no choice but to address, and if we wait a couple of generations, there will quite literally be no one left to teach them. The values we talk about here will have simply disappeared. Whatever the legal ramifications, how in the bloody eff did the parents not know what was in the kid’s backpack (and i say this without irony – my wife deals with this almost daily. Parents have no idea what their kids are doing, because they don’t look. Period. Conservative, liberal – doesn’t matter, You better bet your bottom dollar that kids from Conservative families are just as low and preposterously babied as anyone else. This is generational, not political, and that means the ENTIRE population might one day soon not be able to tell you what 2+2 equals when they are the inheritors of society, one half out of dogma, the other out of parental reticence)? Sorry, but that is a failure of parenting, it is real, it is rampant, and it is our future if people do not stop being so, as said above, pedantic. Does the pedantry matter if it’s your kid that was shot? Your husband or wife? All because a parent could never bring themselves to say, ‘No’ at any point during their child rearing years or look in their backpack before they went to school? Was checking their Insta feed really that much more important that day than paying even a modicum of attention to what their kid was doing?
Question?: If eventually the school is held responsible, is the responsibility of payment up to the state, which has sovereign immunity? Isn’t it up to the legislature to determine what the state is willing to pay?
S. Meyer – sovereign immunity applies to the state government. Governmental immunity applies to political subdivisions, which includes school districts (as well as townships, counties, etc.). But all these immunity statutes have exceptions where the immunity is waived by statute. Presumably, if Virginia has a governmental immunity statute this is one of the exceptions, otherwise the lawsuit would have been dismissed on the basis of governmental immunity. So bottom line, the state doesn’t have to pay, the school district does (if it is not immune), which in turn means the district’s liability insurer will have to pay to the limits of the policy, if in fact the school district carried such insurance.
Oldman, I don’t think anyone has researched the immunity statute of Virginia based on this case.
Let’s assume the school district is not immune. If that were the case, shouldn’t they declare policy limits if permissible in that state? My understanding of policy limits is that in certain states, the defendant can admit guilt and invoke policy limits. If the insurer refuses to pay, then a judgment above policy limits becomes the responsibility of the insurer.
I’m assuming the school district is not immune. If it were, I imagine the teacher would have accepted workers comp, since the choice would be either that or nothing.
the defendant can admit guilt and invoke policy limits. If the insurer refuses to pay, then a judgment above policy limits becomes the responsibility of the insurer.
I think I have an inkling what you’re referring to. If the defendant offers to settle at the policy limit, and the insurer (which has a duty to defend) refuses, and then the jury award is higher than the policy limit, I believe the insurer then has to pay the whole award since it would be unfair to make the defendant pay the difference in a situation where the plaintiff had previously agreed to settle at the policy limit but the insurance company said “no.”
You got it. The plaintiff doesn’t have to agree to policy limits because that is an offer. However, if the settlement ends up at or below policy limits, in some states, the legal fees for both parties are paid by the plaintiff.
Workers comp pays relatively low dollar amounts, and the teacher likely was insured for all medical costs except the deductible. The teacher’s medical coverage will kick in and generally cover the medical costs, and the health insurer can later collect from workers comp if it ends up as a workers comp case. The actual payout by workers comp is relatively small, absent a significant disability.
Since her out-of-pocket costs are mostly under control, I believe it is correct for her to go for the big bucks because there are many unknowns. In the meantime, she can feel things out. Pressure from the outside can result in generous results.
There may be more compensation from others since, in this case, the principal might be personally liable. The unknowns make negotiations interesting. In the end, if it isn’t a workman’s comp case, it will likely settle. Nonetheless, I believe this is, most likely, a workman comp case.
This is a very emotionally disturbed little boy. He was about a half step short of being placed in a segregated educational setting before he shot the teacher. He was so disturbed that his plan required a 1 to 1 aide to accompany him at school. In an unusual arrangement that aide was one of his parents. The day of the shooting was the first day he was unaccompanied by an aide. When he showed up unaccompanied the school had several choices, 1 send him home, 2 let him sit in the office for the day, 3 assign an aide to accompany him to class, 4 send him to class unaccompanied. They chose 4 and sent him to class unaccompanied. There were several reports he had a gun and at one point was searched and did not find it. The assistant principal who ignored a subsequent report of the gun has resigned, the principal was removed, and the system has a new superintendent. After the shooting the boy’s statement was “I shot the b*tch”. It was not an accidental discharge. He is a very disturbed little boy. It was Mom’s gun, and she has been charged. She has also failed court ordered drug tests.
Hope this helps some of the commenters who have not had much of the context around the shooting.
What legal precedents exists to prosecute the parent?
The broader context is that this was a ghetto school, and the boy was mimicking the language and behavior that he saw everyday. I agree that he was unusually violent, even for that sub-culture, but within the context of his environment, he’s no more “seriously disturbed” than the kids in D.C. and Chicago who roam the streets all night committing violent felonies.
All violent children who prowl urban streets into the wee hours should be considered armed and a threat to society. In primate societies, they segregate young males. Works for them.
Most have no idea what a watershed ruling this is for us in Virginia. Let’s keep our fingers crossed on the inevitable appeal and then another appeal.
What was likely infuriating for Zwerner was the added claim that this was all part of “educating John Doe through his behavioral evaluation and educational journey.”
She might find that infuriating, but it’s entirely beside the point. She was clearly injured in the course and scope of her employment, which is what matters. Whether or not one characterizes the boy’s actions as being part of the boy’s “journey” is completely irrelevant.
The only other factual issue that matters is whether the injury was caused by an accident (see below).
It clearly was not an accident. It was clearly preventable by the employer and it was targeted. No non-Public Safety or Military employee is part and parcel to being shot at work (as part of their job). This Judge may be overturned at some point as a protection for employers, his ruling is correct and the employer is responsible, not the Workman’s Compensation Insurer. The states WC Laws must be re-written to allow remedy for such brutal willful misconduct by an employer.
It clearly was not an accident.
Do we know that for sure? I mean, do we know the kid purposely shot her, or could he have done so accidentally? If you think it’s clear that it was on purpose, how do you know that? And if that’s true, then on that basis alone workers comp doesn’t apply, so why did the judge have to determine that being shot did not arise out of her employment? He could have said “it wasn’t an accident” and stopped right there, no?
No non-Public Safety or Military employee is part and parcel to being shot at work (as part of their job).
True, and maybe Virginia’s WC statute is different than most, but in most cases the crucial question is whether the worker was injured in the course and scope of her employment. Here the trial court used a different test: did the injury “arise out of” her employment. So I’m curious if that’s in the statute, or if its a judicial gloss on the statute. I’ll have to do some research on that.
Clue: The 6 year old said “ I hate you”, then shot the teacher.
The 6 year old is black & the teacher is white.
Some additional information:
From NBCNews.com:
“At the time, the teacher told police, the boy was making statements, including, “I shot that b—- dead,” the documents said.”
“The school system’s superintendent, George Parker III, said Thursday at a virtual town hall that wasn’t public that the boy had come to school late and that his book bag was inspected upon his arriving at the office to sign in, according to parents who watched the meeting.”
From CNN:
‘The shooting was not accidental, Drew said previously, and he told reporters the teacher was “providing class instruction when the child displayed a firearm, pointed it at her and fired one round.”’
From Yahoo News:
“This shooting was not accidental. It was intentional,” the Newport News Chief of Police said.
Looks like “accidental” can be taken out of the equation, if you believe the news reports. The question in my mind now becomes whether the school was grossly negligent for the gun not being found during the search. Seems like that could tip a decision in favor of the of the teacher. Part of the decision might come from a determination that the scope of the worker’s compensation law was never intended to cover a situation like this.
The definition of negligence does not encompass the level of at least gross or even criminal negligence of knowing that the child had a gun and failed to act. How is that not actionable?
By its terms workers comp exclusivity still applies in the case of the employer’s gross negligence, unless there is a judicial ruling interpreting the statute not to apply. But that would be judicial activism, and would upset the “grand social compromise” that has prevailed for over a century.
Is forcing a ‘work comp’ claim instead litigating in court the proper call under the known circumstances, Senior Kansan?
It is irrelevant whether the school district was negligent. Workers comp covers injuries that happen because of the employer’s negligence. The whole point of workers comp is to guarantee some compensation for the employee in return for not litigating whose fault it was. So even if it was the employee’s fault, she gets compensated too.
The statute’s “by accident” language is key here. If the teacher can show the boy purposely shot her, she should be able to recover at common law.
“If the teacher can show the boy purposely shot her, she should be able to recover at common law.”
Recover: From who?
SM – intentionality is merely an agrevating factor.
The core legal issue here is that the teacher has a perfectly legitimate tort.
She was substantially harmed through the negligence of others. She has the RIGHT to be made whole.
That is the CORE to tort law.
In this instance, The SD’s claim is that WC law supercedes Torts and limits her claim.
But the argument has logic issues. WC law exists to streamline the process. If it significantly impairs a persons rights – then it must be subordinant not superceding Tort law.
It is one thing to say – If you trip and fall in a caffeteria, due to a spill, that WC will cover your medical bills, and that is the limit to the SD’s liability – the outcome should not have been much different had the harm been addressed as a tort claim.
It is entirely different to allow WC law to preclude a plantif from being made whole. This teacher will suffer uncompensated physical damage for the rest of her life, and though I am generally less friendly to emotional harm claims – there is still no doubt that there is very real mental trauma that may effect the rest of her life.
While I do support SOME caps on emotional harm awards. I do not opose them completely.
We have a fundimental problem with emotional trauma. The State of Psychology is infantile – there are only a few mental health issues we actually know how to deal with. Psychology has not advanced much since Freud.
Conversely – Emotional Trauma is something near impossible to measure, and ultimately only the injured person can fix it.
My wife and to a lessor extent I were the victims of a very serious violent crime 40 years ago. The impacts of which are forever.
For several years we were barely able to go through the motions of life. I describe it as the gray years. There was no joy in life.
That could easily have lasted the rest of our lives – for very many people it does. There is no pill for it. There is no amount of money that can fix it. The purpose of torts is to make people whole – but many things you just can not ever be made whole.
I know and deal with many people who have had similarly bad things happen in their lives. I fully understand their desire to give up – as most do. They should NOT have to fix themselves – they did not cause their problems.
But the FACT is that no one else can repair your life but you. No one else can bring joy back. No amount of money can fix things. No amount of therapy, no drug.
Ultimately YOU have to decide to do the hard work of retaking your won life – and depending on the seriousness of the trauma it can be incredibly hard.
Regardless, the only way to take your life back is to do so yourself – to cease being a victim – no matter how entitled you may be.
I would separately note this is why I am deeply offended by the Woke nonsense of wrapping themselves in victimhood.
First because getting called by the wrong pronouns is not in the same world as getting raped, tortured or nearly murdered
And next – because why on earth would anyone actually CHOOSE to be a victim ?
Would people choose to have terminal cancer ?
All that said – real harms deserve real compensation.
“All that said – real harms deserve real compensation.”
WC likely oversteps the boundaries of tort law in many cases.
I have no answer except that if I were her, I would not follow the path set for her. (per my comment November 6, 2023 at 9:54 PM)
Your description highlights the problem.
Being made whole for the negligence of others is a RIGHT.
It is one thing to say – if your thumb is hit by a hammer at work – you just go to the ER and WC will take care of it, and you have no right to sue.
Your rights are not being infringed on significantly and the process works reasonably well.
It is another to say that if you are shot, raped, murdered, at work through the negligence of your employer – that is a workers comp issue.
Either Workers Comp owes this teacher far more that coverage for her hospital stay, or the law as being argued violates the teachers rights.
The fundimental principle of tort law – which is one of the fundimental responsibilities of governments under the social contract, is that when you are harmed through no fault of your own by the negligence of others you have the RIGHT to be made whole.
Each of us is responsible for the harm we do to others. That is fundimental to the social contract.
The details are off.
Why did the School allow the child to keep the gun they knew he had?
Simple question that is not addressed.
The school knew that the child had a gun and wanted to see what would happen? Were they testing both the child and the teacher? In school being shot by a gun is not your regular possible daily accident. Maybe tripping over a loose tile or a desk, Or the possibility of shoddy construction causing a wall to fall over and paralyze a teacher (true story). Who was the guardian of the student? How did the 6-year-old have access to a loaded gun? Was it owned legally by whoever the guardian was, who did not secure it properly?
Agreed and relevant. But we are stuck with the facts as Turley presented them.
I agree with anonymous. The school showed negligence in knowing that the child had a firearm and apparently, as described here, took no appropriate action and, in fact, left the teacher out to dry. I suspect she was not even informed of the presence of the firearm. I don’t know of any rational approach that leaves a 1st grade teacher trying to de-escalate an incident that would try the skills of a hostage negotiator or an experienced policeman. Now if the school had given some sort of urban combat training or extensive classes in dealing with hostile and unbalanced felons-to-be, you might have an argument about this being a workman’s comp only case. Courts sometimes move outside the written law when there is something out of the experience of this law or its original writing or intent. I would suggest that the Appellate Court could go either way
The only issue as JT framed this is whether Virginia WC law precludes a separate tort claim.
That is not a difficult question – WC l.aw can only preclude separate tort claims to the extent that WC fully makes whole the plantiff.
Otherwise the law infringes on the individuals rights.
When you are injured by the negligence of another – you have the RIGHT to be made whole by that other.
Not Sort of whole.
While I think $40M is excessive, limiting this to hospital bills is just as egregious.
WC does not exist to take away your rights – just to streamline the process for simple workplace claims.
How did they “know” he had the gun? If they did and he wasn’t in handcuffs (which police have done to little kids who have brought toy guns to school), they are at fault. Any job I have had, being shot is not considered a consequence of work.
In commenting I presume that Turley is correctly stating the facts. If they are different – if as an example the district did not know and had no reason to expect that there was a 6yr old running arround with a gun – then the outcome would be different.
As a separate matter – the Law as Turley expresses it is Wrong and infringes on peoples rights.
Workers comp is there to cover the ordinary costs of ordinary workplace issues.
This is clearly not one of those.
It is a violation of our rights to say – In the event of negligence by another, you can only recover for ordinary negligence, not extreme negligence.
As Turley has stated the facts, the teacher was harmed at school, the school was negligent – that is a tort, and the school is obligated to make the teacher whole. If Workers comp will not do that, then the teacher is free to go to court to be made whole.
While I think that $40m is a bit excessive, I have no doubt the teacher should receive substantial damages.
what do the school officials care…taxpayers pay the money!
How about JAIL the officials!
It is an interesting dispute over a very ugly case. So ugly that there will almost certainly be a settlement.
That’s most likely the outcome.
She asks for 40M, but if it gets settled, want to be its for the liability cap?
I would guess that the school system will weigh the potential of failing along with the atrocious publicity that would accompany going to trial. The union will have political interests on both sides and will be in a quandry, and will push for a settlement to remove the matter from view of the public as soon as possible. The board will make a ridiculously low offer of 1 or 2 million, the teacher’s attorneys will counter with 20 mil, they will eventually settle between 6 and 10, probably closer to 6. These things have a predictable flow.
So much for a zero tolerance. I’m thinking that the school’s violation of it’s own policy should come into play somewhere