December 3, 2023

You may recall the case of Abigail Zwerner, the elementary school teacher who was shot by a 6-year-old student in January of this year. Despite being seriously injured, she ushered her class out of the room before collapsing. She spent the next two weeks in the hospital.


Zwerner eventually resigned and sued the school district for $40 million arguing that administrators had advance warning the student had brought a gun to school that day and that he had a history of violence toward teachers.

The school district’s response to the lawsuit was that Zwerner’s claim should be dismissed on the grounds that any issues related to the shooting were covered by worker’s compensation. In essence the district argued that being shot by a 1st grader was just one of the risks of the job of being a teacher.

“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,” the school board argues. “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[.]”…

“Plaintiff was well-aware of John Doe’s history and behavioral challenges through her role as a teacher at Richneck Elementary School and a member of John Doe’s SST,” the motion says. “Educating John Doe through his behavioral evaluation and educational journey was squarely within Plaintiff’s job description. Thus, when John Doe acted out and injured Plaintiff during class on January 6, 2023, the resulting injuries fall under Workers’ Compensation.”


That struck me and many other people as pretty ridiculous. But the argument had to go before a judge. Today, the judge ruled Zwerner’s suit can proceed.

The surprise decision by Newport News Circuit Court Judge Matthew Hoffman means that Abby Zwerner could get much more than just workers’ compensation for the serious injuries caused by January’s classroom shooting…

Hoffman sided with Zwerner, concluding that her injuries “did not arise out of her employment” and therefore did not “fall within the exclusive provisions of workers’ compensation coverage.”

The judge wrote: “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 has said it will appeal and law professor J. H. Verkerke of the University of Virginia said they could win thanks to the state’s strict workers comp law. “Virginia precedent surely gives the school board reason to hope for reversal of the trial court’s ruling,” he said. In order to sidestep that, Zwerner’s attorneys will need to prove the shooting was “personal.” That’s a word that the judge used in his decision today.

In his ruling on Friday, Judge Hoffman wrote that the shooting against Zwerner was “personal.”…

“It was not until the student was back in (Zwerner’s) classroom that he decided to fire it once, striking (Zwerner),” Judge Hoffman wrote. “He did not at any time threaten any other student, teacher or administrator at the school with a firearm.”


However the AP notes that Zwerner’s attorneys had previously argued that the student with the gun put everyone at risk. So it really is possible this could be overturned, which seems pretty unfortunately under the circumstances.

The mother of the 6-year-old was supposed to be sentenced in October but the sentencing was delayed until December. So we’re still waiting to see how long she’ll be in prison.