An elementary school teacher who was shot by her 6-year-old student in a classroom in Virginia can move forward with a $40 million lawsuit against the school district, a judge ruled on Friday.
Lawyers for the district, Newport News Public Schools, have tried to block the lawsuit, which accuses it of gross negligence, and said that the first-grade teacher, Abigail Zwerner, should only be eligible for workers’ compensation.
Judge Matthew Hoffman of Newport News Circuit Court said that Ms. Zwerner’s injuries “did not arise out of her employment,” making her eligible for more than workers’ compensation.
“The danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher,” Judge Hoffman wrote in his ruling.
The boy fired a single shot at Ms. Zwerner, 26, in January while she was teaching at Richneck Elementary School in Newport News, Va., about 70 miles southeast of Richmond. He used a 9-millimeter Taurus handgun that had been legally purchased by his mother, the Newport News Police Department said.
When the shot was fired, Ms. Zwerner threw up her left hand, which the bullet passed through before striking her chest, the police said.
She was seriously wounded but was able to direct her students, as many as 20 children, into the hallway while another teacher restrained the boy who had fired the gun, the authorities said.
In the hours before the shooting, school leaders were warned three times that the boy might have a gun, Ms. Zwerner’s lawyers said, and a teacher had searched the student’s backpack for a gun but did not find one.
Prosecutors said that the boy would not be charged. In August, the boy’s mother, Deja Taylor, pleaded guilty to a charge of felony child neglect. Her sentencing is scheduled for December.
Ms. Taylor’s lawyer, James S. Ellenson, told The New York Times in August that the charge carried a maximum sentence of five years in prison, but that prosecutors had agreed not to deviate from the state’s recommendation of one to six months of imprisonment, given her lack of criminal history.
Ms. Zwerner filed her lawsuit against the school district and former school officials in April.
In Virginia, workers pursuing claims for a workplace injury can only do so under the state’s Workers’ Compensation Act and cannot bring personal injury lawsuits. Under the act, Ms. Zwerner would collect two-thirds of her teacher’s pay for nearly 10 years and receive lifetime medical benefits, The Virginian-Pilot reported.
Ms. Zwerner’s lawyers have argued that being shot by a student is not a workplace hazard.
Judge Hoffman said in his ruling that the injury did not arise from Ms. Zwerner’s employment because a “first-grade teacher would not expect to be shot by one of their students” and that the shooting was “personal.”
The judge noted that two days before the shooting, the student had slammed Ms. Zwerner’s cellphone on the ground. On the day of the shooting, the boy “did not at any time threaten any other student, teacher or administrator at the school with the firearm,” Judge Hoffman wrote.
Anne Lahren, the lead lawyer for the school district, said in a statement that the district planned to appeal the ruling.
“The actual risk of employment in this scenario is that of a teacher being injured at the hands of a student, which, unfortunately, is a fairly common occurrence and one that is only increasing in frequency this day and age,” she said.
Ms. Lahren said that for a “personal” action to override the Workers’ Compensation Act, the “personal motive must not be itself related to or arising out of the employment.”
Ms. Zwerner’s lawyers said in a statement that the judge’s ruling was an important step on the “path towards justice for Abby.”
“We are eager to continue our pursuit of accountability and a just, fair recovery,” the statement said. “No teacher expects to stare down the barrel of a gun held by a 6-year-old student.”
The trial is scheduled for January 2025.