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