Increasing school violence across the country raises questions about whether educators who are injured and eligible for workers compensation can sue their employers.
And a suit filed by a teacher at a school in Virginia earlier this year seeks damages outside of the comp system for her injuries.
The American Psychological Association says that violent incidents against teachers began to steadily rise during the COVID-19 pandemic. An APA report examining survey findings regarding violence against educators between 2020 and 2021 showed that 49% of U.S. teachers said they wanted to quit their jobs or switch schools because of workplace violence.
A recent case in Newport News, Virginia, involved a former elementary school teacher who was shot in January by a 6-year-old student who brought a gun to school. Abigail Zwerner, who was badly injured after being shot in the hand and chest and has since left her job, filed a lawsuit in April seeking $40 million in damages, claiming the district didn’t do enough to protect her. The case, Abigail Zwerner v. Newport News School Board, is pending in the Newport News Circuit Court.
In her suit, Ms. Zwerner, who was 25 when she was shot, alleges the district knew the student had a history of random violence and that on the day of the shooting, despite being informed by other students that the boy claimed to have a gun, district employees failed to locate the firearm during a backpack search.
The suit also says an administrator prohibited an additional search of the boy; the boy retrieved the gun from a pocket before shooting the teacher.
The district said the incident falls under Virginia’s exclusivity provision limiting injuries that occur in the workplace to the comp system.
“Teaching and supervising students in her first-grade class was a core function of Plaintiff’s employment,” attorneys for the Newport News School Board wrote in court documents. “Thus, Plaintiff’s injuries arose out of and in the course of her employment.”
A Newport News Circuit Court judge is expected to rule in October on whether the suit can proceed and has allowed both parties to proceed with discovery.
Anne Lahren, an attorney with Virginia Beach, Virginia-based law firm Pender & Coward P.C., which represents the school board, said she understands the frustration over the case but said that the threshold to bypass workers comp wasn’t met and that other parties could be liable instead.
“Workers comp (law) simply bars a tort lawsuit against the employer. It does not in any way impact the injured party’s ability to sue the shooter, but in this case you have a 6-year-old, so the parent,” she said.
Virginia case law is “unusually strict” when it comes to comp exclusivity, even in seemingly exceptional cases that might fall outside of comp in other states, said J.H. Verkerke, a Charlottesville-based law professor at the University of Virginia School of Law.
“You could easily imagine a judge being sympathetic to the claim and desirous of offering something more than the relatively minimal compensation available through the workers comp system,” he said.
Exclusive remedy provisions vary by state but generally hold that employees cannot sue employers for injuries sustained at work. In return, their medical costs and lost wages are covered by workers comp.
In some states, exclusivity does not apply if a worker can show he or she was intentionally harmed by their employer, said John Geaney, co-chair of the workers compensation practice at the Mt. Laurel, New Jersey, law firm Capehart Scatchard PA. But even if a civil suit is permitted to go forward, the outcome is not guaranteed, he said.
“Suing is one thing; winning is another,” he said. “People sue for intentional harm but almost always lose.”
David Langham, Tallahassee-based deputy chief judge of compensation claims for the State of Florida, said that whether an injured teacher in his state could sue outside of comp is a difficult question.
“The question is going to be: Is the violence part of the employment, or is the violence merely imported into the work environment?” he said.
In Florida, for a teacher to bypass comp exclusive remedy, he or she would have to prove an “intentional act” by the employer, Judge Langham said.
“That’s beyond even gross negligence,” he said. “It’s very, very hard in some of these states to get out of the comp system.”