Virginia school district where teacher shot by first-grader says she should only be entitled to workers’ comp

The Virginia school district where a 6-year-old student shot his first-grade teacher earlier this year has filed documents asking a court to throw out her $40 million lawsuit, arguing that with her injuries she is only entitled to workers’ compensation. 

Abigail Zwerner, 25, is pursuing damages following the attack on Jan. 6 at Richneck Elementary School in Newport News. 

Her complaint, filed this month in Newport News Circuit Court, contends that the district and school administrators shrugged off multiple warning signs, including from other staffers who told Richneck Elementary School's then-assistant principal Dr. Ebony Parker that the boy might be carrying a gun the day of the shooting.  

However, the Newport News School on Wednesday said in response to her filing that Zwerner was "clearly injured while at work, at her place of employment, by a student in the classroom." 

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The school board also rejected Zwerner's claim that she could reasonably expect to work with young children who pose no danger, pointing to numerous incidents of violence against teachers across the U.S. and in Newport News. 

"While in an ideal world, young children would not pose any danger to others, including their teachers, this is sadly not reality," the filing stated, according to The Associated Press. 

Zwerner was approved for workers’ compensation, which covers injuries "without having to prove negligence," the school board said Wednesday. It provides up to 500 weeks of compensation and lifetime medical care for injuries. 

The board claims Zwerner refused to accept workers’ compensation and instead filed her lawsuit, which they allege "strategically focuses on the use of a handgun as opposed to some other weapon with less perceived notoriety and shock value." 

"If the allegations in the complaint substituted ‘sharp scissors’ for ‘gun’ and John Doe stabbed (Zwerner) in the neck in the classroom, there would be no doubt that the injury would fall under workers’ compensation," The Associated Press quoted the board’s response as saying. 

The document also took opposition to past claims from Zwerner that the child who fired at her should not have remained in her class, reportedly stating that the boy was being evaluated for possible ADHD and even if found in need of additional help and services, state and federal laws would have applied "for the purpose of keeping such children in the classroom with their peers when possible." 

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Zwerner’s filing, which also names the Newport News School Board, former Superintendent George Parker III and former principal Briana Foster Newton, alleges they were aware the boy "had a history of random violence," but failed to take appropriate action to protect Zwerner.  

While in kindergarten, the same child was accused of strangling another teacher a year prior. The complaint also says the boy pulled the dress of a female student who had fallen while on the playground and "began to touch the child inappropriately until reprimanded by a teacher." 

The boy had been transferred to a different institution in the district but was permitted to return for the next school year when he was enrolled in Zwerner's class. 

"Teachers' concerns with John Doe's behavior was regularly brought to the attention of Richneck Elementary School administration, and the concerns were always dismissed," Zwerner's lawsuit said. "Often when he was taken to the school office to address his behavior, he would return to the classroom shortly thereafter with some type of reward, such as a piece of candy." 

Zwerner's attorneys previously told NBC that her lawsuit challenges the school board's argument that the shooting comes as an assumed risk of being a teacher and is a workers' compensation matter.  

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"No 6-year-old student is really going to be a risk of shooting a teacher. It’s not a part of their job. It’s not a night 7/11 worker. And so I think the worker’s comp defense will fail," attorney Jeffrey Breit said. 

"That’s what they’ve maintained up until today. That is just part of the job. It’s an assumption of the job that a first-grade teacher is going to be shot by their own student, a 6-year-old," Zwerner's attorney Diane Toscano added. "That is unacceptable. That’s outrageous. And that’s not what happened here." 

Fox News’ Danielle Wallace and The Associated Press contributed to this report.