CHESAPEAKE, Va. — Attorneys for both Chesapeake Walmart survivor Briana Tyler and Walmart appeared in court this week, debating whether the shooting falls under workers’ compensation.
It’s the same argument the Richneck Elementary School shooting survivor Abby Zwerner’s legal team faced just last week.
Zwerner's first-grade student shot her in their classroom in January.
A judge has already decided in favor of Abby Zwerner’s legal team, allowing her lawsuit to move forward.
Now, Briana Tyler is awaiting a judge’s decision to move forward with her $50 million lawsuit.
Two Hampton Roads judges are answering a central question for the survivors of the Richneck Elementary School and Walmart shootings: Is gunfire in the workplace a matter for workers' compensation?
In Newport News, the school division argued that first grade teacher Abby Zwerner’s injuries are covered under workers' compensation.
The judge in that case ruled they do not. In his opinion, Judge Matthew Hoffman wrote, “The danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher."
That decision allowed Zwerner’s $40 million dollar lawsuit to move forward.
Now, Tyler and her team are waiting to see how a Chesapeake Circuit Court Judge will decide on essentially the same question.
"The fact that a judge in Newport News has ruled one way does not compel a judge in another jurisdiction to rule that way. It’s not what we call binding authority. It can be persuasive," said 13News Now Legal Analyst Ed Booth. "I fully anticipate that the plaintiffs will be using the Zwerner opinion as persuasive authority, even if the judge isn't bound the follow it."
Booth said although these cases are similar, there are some differences.
For instance, Zwerner was shot by her student. Tyler was shot at by the Walmart shooter, but he did not hit her. However, she claims both of her legs were injured and she had acute chest pain.
Both plaintiffs argue they were directly targeted by their shooters at work.
Attorneys for Walmart argued earlier this year there is no proof the Walmart shooter went after Tyler as a “personal attack.”
"You literally could wind up with different results because these are different jurisdictions with somewhat different facts," said Booth.
Booth said if the decision in Chesapeake is different than the one in Newport News, there could still be a path forward for Tyler’s team.
"When you’ve got a situation where you’ve got very similar facts in different jurisdictions being decided differently, those kinds of split courts are ripe for resolution by an appellate court," Booth said.
It’s not clear when the judge will issue his opinion in Tyler’s case against Walmart, but stay with 13News Now for updates.