Ethermac Exchange-A teacher was shot by her 6-year-old student. Is workers’ compensation enough?

NEWPORT NEWS,Ethermac Exchange Va. (AP) — A heated debate has emerged about the once-unimaginable shooting of a teacher by her 6-year-old student: How should the school district take care of the teacher?

Should she only get workers’ compensation for her serious physical injuries? Or does she deserve the chance to sue the school system for millions of dollars over claims that it failed to protect her?

Attorneys are likely to argue over those questions Friday in the Virginia city of Newport News, where Abby Zwerner is suing the public schools for $40 million. The former first-grade teacher was hospitalized for nearly two weeks and endured multiple surgeries after a bullet struck her hand and chest.

Zwerner’s lawyers are expected to ask a judge to allow her lawsuit to proceed with allegations of gross negligence against school administrators. The school board will argue for workers’ compensation, which provides up to more than 9 years of pay and a lifetime of medical care for Zwerner’s injuries.

She faces an uphill legal battle under Virginia’s uncommonly strict workers’ compensation law, said J. H. Verkerke, a University of Virginia law professor.

Virginia’s law covers allegations of negligence against employers as well as workplace-related assaults, Verkerke said. Lawsuits that might move forward in other states often falter in the Commonwealth.

To succeed, Zwerner’s lawyers must prove the shooting was unrelated to her job, even though she was shot in her classroom. Their challenge is “to somehow make out that it’s personal,” said Verkerke, who directs UVA’s Program for Employment and Labor Law Studies.

In early January, the 6-year-old pulled out his mother’s handgun and shot Zwerner as she sat at a reading table. She rushed her students into the hallway before collapsing in the school’s office.

Zwerner sued in April, alleging school officials ignored multiple warnings that the boy had a gun and was in a violent mood.

Police have said the shooting was intentional. Zwerner claims school officials knew the boy “had a history of random violence” at school and home, including when he “choked” his kindergarten teacher.

Zwerner’s attorneys say workers’ compensation doesn’t apply because a first-grade teacher would never anticipate getting shot: “It was not an actual risk of her job.”

“Her job involved teaching six-year-old children, not exposing herself to criminal assault whenever she went to work,” Zwerner’s lawyers writes in a brief filed last week.

The school board has failed to prove the shooting was job-related, Zwerner’s attorneys argue. The boy’s “violence was random and aimed at everyone, both in and out of school.”

He “asserted that he was angry that people were ‘picking on’ his friend, a motivation that had nothing to do with (Zwerner),” her lawyers write without further elaboration. “His motivation was a personal one.”

The school board disagrees, writing that the shooting cannot be personal because 6-year-olds lack the capacity to form intent according to Virginia law.

“Children under seven are ‘conclusively presumed to be incapable of crime,’” the school board’s lawyers write in a brief, citing the state’s Supreme Court.

The lawyers question how the shooting could be anything but work-related. Zwerner “was exposed to this alleged negligence only because of her employment at the school,” they write.

The school board also points out that the boy was suspended for intentionally breaking Zwerner’s cellphone before the shooting. Zwerner’s own lawsuit “implies that he became angry about that suspension resulting in the shooting,” school board lawyers write.

“Everything about this incident arises from (Zwerner’s) employment as a teacher,” the school board argues. “There is no allegation — nor could any such allegation be credibly made — that (Zwerner) had any personal relationship with (the student).”

Many in Virginia’s legal community will be surprised if Zwerner’s lawsuit proceeds, said Verkerke, the UVA law professor. And if it does move forward, the school board will almost certainly appeal given the scope of the state’s workers’ compensation act.

Workers’ compensation laws were deemed a grand bargain in the 20th century between injured workers and employers: Workers lost the ability to sue in most cases, protecting employers from enormous payouts. But people who were injured gained much easier access to compensation — lost pay and medical coverage — without having to prove fault.

“It’s obviously horrifying,” Verkerke said of the shooting. “The reality though is that workplace violence is a tragically common occurrence. This is an exceptional case because the assailant is only six years old ... I don’t think I’ve ever seen a case like that.”