District tries to dismiss lawsuit from teacher shot by 6-year-old, says it's covered under workers' comp

Lawyers for the school board in Newport News, Virginia, have filed a motion to dismiss the $40 million lawsuit filed by first-grade teacher Abby Zwerner who was shot in her classroom by a 6-year-old student.

The attorneys for the board claim that her injuries are covered under the state's worker's compensation law for which she was approved to receive benefits, but they say she refused to accept them and filed suit instead.

In Zwerner's lawsuit, she alleged that school administrators were told the boy brought a gun to school prior to the shooting and "had a history of random violence," yet did nothing to stop him from harming her.

In response to her lawsuit, the motion filed on Wednesday by the attorneys for the Newport News School division claims the allegations made in the lawsuit fall under Virginia's Workers' Compensation Act.

They argue the act doesn't fall in the jurisdiction of the Newport News Circuit Court.

The lawyers for the board are representing former Newport News School Superintendent Dr. George Parker, III, and former Richneck Elementary Principal Briana Foster Newton. Ebony Parker, the former assistant principal at Richneck who was named in Zwerner's lawsuit, was not included in the school board's motion.

Lawyers for the school board wrote in the motion that Zwerner's complaints about the shooting in her lawsuit, "alleges in detail a long list of workplace conditions that were a direct and proximate cause of the attack on Zwerner."

The motion argues that under the Workers Compensation Act, Zwerner is barred "from maintaining a cause of action against the School Defendants for the injures she sustained in the course of her employment as a first-grade teacher with Newport News School." The court, thus, lacks subject matter jurisdiction over Zwerner's claims arising from the injuries she sustained during the shooting, the motion argues.

It further argues that Zwerner's assertion that the 6-year-old's attack was personal to her is in violation of the state's laws that children under the age of seven are unable to be guilty of negligence. The attorneys for the board add that Zwerner's lawsuit "attempts to circumvent the Act" by alleging that the child's actions on the day of the shooting were "personal" and pointing to the handgun as the problem.

Zwener "goes as far as to claim that she reasonably anticipated that 'she would be working with young [elementary school] children who posed no danger to her.' While in an ideal world, young children would not pose any danger to others, including their teachers, this is sadly not reality," the motion says.

The motion says this is why Zwerner focused on the use of the handgun compared to any other weapon "with less perceived notoriety and shock value, even though serious injuries can be inflicted with scissors, knives, pencil, rocks, chairs, and hands."

The motion alleges that Zwerner, alongside other school officials, allowed the 6-year-old who shot her to return to school without the requirement of a parent. They claim that Zwerner had raised that the 6-year-old's improvement in class warranted an extended school day and other modifications.

Diane Toscano and Jeffrey Breit, attorneys for Zwerner, told ABC News on Thursday, "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."

Zwerner's lawyers added, "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."