The Virginia school district where a 6-year-old boy shot a teacher earlier this year is arguing that she should receive workers compensation for her injuries instead of the $40 million she is seeking in a lawsuit.
Abigail Zwerner, 25, was reading to her first-grade class at Richneck Elementary on Jan. 6 when one of her students with a history of behavioral challenges and violence pulled out a gun and shot her in the hand and chest with a single bullet.
Her lawsuit accuses the school district of gross negligence, according to court filings.
She was hospitalized for almost two weeks and told NBC News last month she was still in shock and still had nightmares about the shooting. The case rattled the military shipbuilding community in coastal Virginia and garnered national debate about gun and school violence.
Zwerner sued the Newport News school district in April, claiming administrators acted negligently when they failed to heed warnings the boy was dangerous and ignored reports on the day of the shooting that he had a gun.
The Newport News School Board said in its filing on Wednesday that Zwerner’s injury falls under Virginia workers compensation, which it said covers assaults against employees.
“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,” the school board said.
SHOT TEACHER SUES:Virginia teacher sues school district for gross negligence, seeks $40 million
The filing, which was provided to USA TODAY by school district spokesperson Michelle Price, also argues against Zwerner’s assertion in her lawsuit that she reasonably expected she would be working with elementary-aged children who wouldn’t be a danger to her. The district cited cases of violence against teachers by students from across the country 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 says.
“This is exactly why Plaintiff strategically focuses on the use of a handgun as opposed to some other weapon with less perceived notoriety and shock value, even though serious injuries can be inflicted with scissors, knives, pencils, rocks, chairs, and hands.”
The district argued if the child had stabbed Zwerner in the neck with sharp scissors rather than shooting her with a gun, there would be no question the injury would fall under workers compensation. Zwerner refused to accept workers compensation and filed her lawsuit instead, the school board claimed.
In a statement provided to USA TODAY on Friday by attorney James Toscano, Zwerner’s legal team said nobody would agree that a first-grade teacher should expect one of the risks of teaching is getting shot by a student.
“The school board’s position is contrary to how every citizen in Newport News thinks teachers should be treated, and the law does not support the board’s position,” the statement reads. “Teachers across the district will be alarmed to learn their employer sees this as part of the job description.”
The boy used his mother’s gun, investigators found. While prosecutors have said the child would not face any charges, his mother was arrested earlier this month and charged with felony child neglect and recklessly leaving a loaded firearm so as to endanger a child. USA TODAY is not naming the woman in this story to protect the identity of the child. The boy has received mental health treatment in a hospital since the shooting, his family’s attorney previously said.
Zwerner claimed in her lawsuit that school administrators had multiple warnings on the day of the shooting that the boy might have a gun and be a danger. The lawsuit also said Zwerner would regularly raise concerns about the child’s behavior, and that he had a well-documented history of violence including a previous incident when he “strangled” a kindergarten teacher.
The boy’s backpack was searched before the shooting, but Zwerner’s lawsuit said she saw him take something out of his backpack and put it into his pocket, but an assistant principal said that the boy’s “pockets were too small to hold a handgun and did nothing.”
Diane Toscano, one of Zwerner’s attorneys, said the school administration “was paralyzed by apathy” and didn’t take actions including calling police, removing the boy from class or locking down the school.
READ MORE:Virginia 6-year-old who shot his teacher exposes flaws in how schools treat students with disabilities
The district also pushed back on Zwerner’s argument that the child should have been removed from her class due to his behavior. The district said he was in the process of being evaluated and treated for possible ADHD but the evaluations were not yet complete. The district said Zwerner agreed with the plan at the time, which included removing previous measure put in place such as a parent accompanying him to class because his behavior had been improving.
Educating the boy “through his behavioral evaluation and educational journey” was part of her job description, the district claimed.
Zwerner’s lawsuit names the Newport News School Board and several school district officials, including former Superintendent George Parker III, as defendants. The suit says Zwerner suffered bodily injuries, physical pain, mental anguish, lost earnings and other damages.
Contributing: The Associated Press