NEWPORT NEWS, Va. — The law firm representing three of the four defendants in the lawsuit filed by Richneck Elementary School teacher Abby Zwerner has filed a motion in Newport News Circuit Court to have the suit dismissed.
The motion, known as a Plea in Bar, was filed Wednesday afternoon by attorneys with the law firm Pender and Coward, which represents the Newport News School Board, former Newport News School Superintendent Dr. George Parker, III, and former Richneck Elementary Principal Briana Foster Newton.
The fourth defendant in the lawsuit, former Richneck Elementary Assistant Principal Ebony Parker, is represented by a different law firm and was not included in this motion.
The motion states that because Zwerner's claims fall under Virginia’s Workers’ Compensation Act, they are in the jurisdiction of the Workers’ Compensation Commission and not within the jurisdiction of the Circuit Court.
In their motion, the defense lawyers state: "...workers’ compensation exists for the benefit of employees for the purpose of providing coverage for workplace injuries without having to prove negligence on the part of the employer. Plaintiff is not without remedy; her remedy is dictated by the Virginia Workers’ Compensation Act and the provisions contained therein. The Newport News Circuit Court does not have jurisdiction to hear workers’ compensation claims."
Zwerner’s legal team has filed a $40 million lawsuit accusing administrators of ignoring repeated warnings about the boy that fired the gun. Her attorneys accuse school leaders of "recklessly disregarding the safety" of everyone on school grounds.
The attorneys representing the defendants cite the “unfortunate reality” that teaching in this country, even for elementary school teachers like Zwerner, isn’t without its dangers.
On Thursday, Zwerner's legal team released a statement in response: “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 six-year-old. 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. Teachers across the district will be alarmed to learn their employer sees this as part of the job description.”
This filing is something 13News Now Legal Analyst Ed Booth says is not surprising.
"This is not a surprise to anybody. Everybody knew this was coming and everybody knew that this was an argument they’re going to make," he said.
He said even looking at the amended complaint filed by Zwerner’s team, the language they used seems to preemptively counter this argument.
"That’s why in the amended complaint you see multiple references to the teacher not expecting this sort of injury as compared to the types of injuries that would be more expected to fall under the worker’s compensation system."
Booth said the next step will be to have a Circuit Court judge rule on the matter.
Zwerner was shot by a 6-year-old boy who had taken his mother's gun to school. The boy's mother, Deja Taylor, has been charged with felony child neglect and a misdemeanor count of recklessly leaving a firearm that endangers a child.
Zwerner continues to recover at home from her injuries. She still has the bullet with which she was shot in her chest and has not returned to work.
Newport News Police Chief Steve Drew has repeatedly characterized the shooting as "intentional." He said there was no warning and no struggle before the child pointed the gun at Zwerner and fired one round, striking her in the hand and chest.
Zwerner, 25, hustled her students out of the classroom before being rushed to the hospital, where she stayed for nearly two weeks.
The attorneys for the defendants gave the following statement to 13News Now about the motion they filed Wednesday:
“In a perfect world, no teacher would ever be injured by one of their students at school… or anywhere. However, unruly students and bad behavior are all too common in schools across the country, and Newport News is sadly not immune to this. We have filed the Plea in Bar in this case because Ms. Zwerner’s injuries undisputedly occurred at school, in the classroom, during the school day, and at the hands of one of her students," they wrote.
"This is the definition of a workplace injury and the fact that the student used a gun as opposed to stabbing with a pair of scissors or throwing a textbook at a teacher’s head does not change this basic fact. We are asking the Court to hold that since Ms. Zwerner suffered a workplace injury, this case falls under the exclusive jurisdiction of the Workers’ Compensation Commission and not the Newport News Circuit Court.”
In the lawsuit filed by Zwerner’s attorneys, they say all of the defendants knew the boy had a history of random violence, at school and at home. They say he strangled and choked his kindergarten teacher the year before, and inappropriately touched a female classmate under her skirt
They stated, "All defendants knew that John Doe attacked students and teachers alike… and his motivation to injure was directed towards anyone in his path."
Shortly after the shooting, the boy’s family claimed the boy suffered from an “acute disability.” Wednesday's motion reveals the boy was being tested for ADHD at the time.
It also reveals that a previous plan to have his parents in the classroom every day was no longer in place at the time of the shooting.