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Lawyers of Abby Zwerner, Virginia teacher shot by 1st grader, criticize motion to dismiss $40 million lawsuit

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Posted at 12:50 PM, May 04, 2023

Lawyers for the Virginia teacher shot by a 6-year-old student earlier this year are criticizing a motion to dismiss her lawsuit against the Newport News school board and administrators.

Abigail Zwerner was shot by the first grader on January 6 at Richneck Elementary School. She was hospitalized with gunshot wounds to her hand and chest, police said at the time.

Zwerner filed the suit earlier this year against school administrators and the Newport News Public Schools board for $40 million in compensatory damages, CNN previously reported.

The April 26 filing to dismiss the suit from the school board stated Zwerner's injuries "fall under the exclusive coverage of Virginia's Workers' Compensation Act."

The act essentially bars Zwerner from suing the school board "for the injuries she sustained in the course of her employment as a first-grade teacher with Newport News Public Schools," the recent court filing stated.

The compensation act gives employees "the right to assert no-fault liability against their employers ... and (takes) from them the right to sue their employers in tort for negligence," according to the Virginia Supreme Court.

Zwerner's attorneys, Diane Toscano and Jeffrey Breit, said in a statement to CNN that the school board's position isn't how "every citizen in Newport News" feels teachers should be treated.

"No one believes that a first-grade teacher should expect that one of the risks of teaching first grade is that you might get shot by a 6-year-old," Toscano and Breit said.

Accidental injuries and those that happen either in the course of or arising out of the course of a person's employment "strictly limit" the injured person's rights under the act, the school board's motion stated. Zwerner has refused benefits under the compensation act, according to the motion.

Zwerner "was clearly injured while at work" as she performed "a core function" of her job -- teaching and supervising first graders, according to the motion, which also stated that unless an exclusion applied, the injuries fall under the Workers' Compensation Act.

"Teachers across the district will be alarmed to learn their employer sees this as part of the job description," Toscano and Breit said.

Zwerner's lawsuit alleges the school board and administrators knew the student had a "history of random violence" but didn't proactively address concerns and warning signs, including that the 6-year-old may have had a firearm in his possession in the hours before she was shot.

The fallout from the shooting was swift, with the school's assistant principal resigning two weeks later and the principal, Briana Foster Newton, being reassigned to another school. The incident, which drew harsh criticism from parents, also led the school board to vote out Superintendent George Parker III.

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