NEWPORT NEWS — Getting shot by a student isn’t anything a first-grade teacher would “expect or anticipate” during their time on the job, according to a new filing in a lawsuit over the Richneck Elementary School shooting.
The newly reached stipulation between the Newport News School Board and a Richneck teacher who was shot in her classroom Jan. 6 comes during a pending dispute over whether Abigail Zwerner’s wounds should be deemed a mere “workplace injury” or something beyond that.
“The School Defendants will stipulate … that no first grade teacher in the Newport News Public School System would expect or anticipate” that getting shot by a student is “part of their job,” the stipulation reads.
Harry How/Getty Images
In this undated photo provided by her family and lawyers, Abigail Zwerner, a first-grade teacher at Richneck Elementary School in Newport News, is shown inside her classroom.
That agreement comes as the two sides spar over whether Zwerner was merely injured on the job — in which case the lawsuit would be dismissed and her claim subject to the terms of the Worker’s Compensation Act. If it’s not a workplace injury, her $40 million lawsuit can proceed to a jury trial next year.
A hearing to decide that issue is slated for October before Newport News Circuit Court Judge Matthew W. Hoffman.
Robert “Bob” Samuel Jr., an attorney for the Newport News School Board and two school administrators, said after a hearing Wednesday that the board isn’t conceding anything and still maintains Zwerner indeed suffered a workplace injury. (The stipulation will no longer apply if the case goes to trial).
“She was in the school,” Samuel said. “She was teaching the child. She was shot while she was teaching the child in the classroom. That’s a workplace injury.”
Anne Lahren, another attorney for the School Board and the two administrators, said in an email that Zwerner would qualify for up to 500 weeks — or nearly 10 years — of pay under Worker’s Compensation Act, “as well as lifetime medical benefits.”
Still, that’s a far cry from the millions of dollars Zwerner is seeking at trial.
Zwerner’s attorneys contend that getting shot on the job isn’t a reasonable expectation of teaching first graders, and that a school administrator’s failure to act on real threats that the 6-year-old boy had a gun in school that day led directly to Zwerner getting shot.
They contend Richneck’s assistant principal, Ebony Parker, ignored clear warnings the boy was armed.
One of Zwerner’s attorneys, Jeffrey Breit, said the School Board’s lawyers agreed to the stipulation because they wanted to avoid the prospect of a litany of first grade teachers — Zwerner’s colleagues — getting on the witness stand one by one to say they wouldn’t have ever expected to get shot by a student.
A key issue at the October hearing will be whether there’s an “actual risk” to first-grade teachers of getting shot by a student.
Another of Zwerner’s lawyers, Kevin Biniazan, said teachers’ expectations of such risks go a long way in establishing that the prospect of getting shot on the job is virtually unheard of or “hypothetical,” not real.
“An expectation goes directly to the issue — the legal issue of an actual risk,” he said. “And that’s why it’s a significant stipulation … We think the stipulation really eliminates the issues in dispute.”
If Zwerner is ultimately told she can’t file a lawsuit after being shot and must only get worker’s comp, Biniazan said that would “change the legal rights of everybody in the Commonwealth of Virginia,” if not the nation.
“We have an amazing client that went through horrific circumstances,” he said. “And I’m sure that people want to support her and are supporting her. But beyond that, it has implications for everybody’s lives.”
Most other matters in dispute over document sharing between the sides were resolved by agreement between the parties — either before Wednesday’s hearing or during the hearing with slight wording adjustments or compromises.
In one of the few disagreements that ended up requiring a ruling, Hoffman gave the School Board 30 days to tell Zwerner’s lawyers why Richneck’s former principal, Brianna Foster Newton, was moved to a new job within the school division after the Jan. 6 shooting.
Peter Dujardin, 757-247-4749, [email protected]
