NEWPORT NEWS — The decks have cleared for a jury trial to take place early next year in the brought by the teacher who was shot by a 6-year-old student at Richneck Elementary School in early 2023.
The seven-day trial is now slated to go forward in January after the Virginia Court of Appeals declined on Friday to hear the Newport 蜜柚APP School Board’s appeal of a judge’s ruling allowing Abigail Zwerner to take her case to trial.
The School Board — which — will now have to wait until after the trial is concluded to take up that argument with the appeals court.
Though rulings by trial court judges typically cannot be appealed until after a trial is over, the School Board had sought permission to have the Workers’ Compensation dispute resolved before the time and expense of trial.
Zwerner’s attorneys hailed Friday’s ruling as a significant win.
“The higher court has spoken — we will go to trial,” Zwerner’s team of attorneys, Diane Toscano, Kevin Biniazan and Jeffrey Breit, said in a statement. “This is another important victory in a string of victories for Abby Zwerner that paves the way for her finally having her day in court.”
Anne Lahren, an attorney with Pender & Coward representing the School Board, downplayed the ruling. She called the board’s “interlocutory appeal” — an appeal of an issue before the case gets to trial — “an extraordinary remedy that is rarely ever granted.”
“We knew when we filed the petition that the Court of Appeals granting our petition at this stage in the litigation was a long shot,” she wrote in a statement. “The case will now proceed to trial, and we firmly believe that the Supreme Court of Virginia will ultimately rule that Ms. Zwerner’s workplace injuries fall under the exclusive jurisdiction of Virginia’s Workers’ Compensation Act.”
The School Board can still appeal on the Worker’s Comp issue after the trial, with many observers believing the Virginia Supreme Court will ultimately decide that dispute.
A ruling in the board’s favor at that time could nullify the entire trial proceeding — including any verdict handed down on Zwerner’s behalf — and send the case for a Worker’s Comp claim instead.
The jury trial is now slated to begin in Newport 蜜柚APP Circuit Court on Jan. 21, 2025 — or about two years after the Richneck shooting.
On Jan. 6, 2023, one of Zwerner’s first grade students pulled a gun from his front hoodie pocket during an afternoon reading class. He pointed the firearm at Zwerner, who sat at her reading table about 10 feet away, and fired a single round.
The bullet went through Zwerner’s left hand — which she held up as the boy opened fire — and struck her in the upper chest and shoulder. She managed to shuttle about 18 students out of the classroom before seeking help. Zwerner was released from the hospital 10 days later.
The news that a made headlines across the world.
In the $40 million lawsuit, filed in April 2023, Zwerner asserts that the school division’s negligence allowed the shooting to happen. For one thing, the lawsuit maintains, Richneck’s assistant principal that the boy had a gun in school that day.
In November, Newport 蜜柚APP Circuit Court Judge Matthew W. Hoffman sided with Zwerner’s lawyers in allowing them to take the case to trial, rejecting the School Board’s argument that Zwerner’s only remedy was filing a workers’ compensation claim.
Hoffman ruled in part that getting shot by a student in a classroom cannot be considered a job hazard of teaching first-grade students. He said Zwerner’s injury “did not arise out of her employment.”
But the School Board contends Hoffman got it wrong.
Under longstanding Virginia law, personal injury claims “arising out of and in the course of employment” must be resolved exclusively by the Workers’ Compensation Act. In other words, such workers are barred under law from pursuing claims through personal injury lawsuits.
If she collected Workers’ Comp, Zwerner would collect two-thirds of her teacher’s pay — tax-free — for 500 weeks, or nine years and eight months. She would also get lifetime medical benefits for the treatment of her injuries.
State law allows “interlocutory” appeals only under certain conditions. Such criteria include that there’s no “clear, compelling” higher court precedent on the issues in dispute, that there’s substantial disagreement over it, and that an appeal is in the parties’ best interest.
In its ruling on Friday, the Court of Appeals panel said there is a “clear, controlling precedent” on the issues presented in the case. Zwerner’s attorneys interpreted that to mean the appeals court believed Hoffman had a firm basis in the case law to send the case to trial.
Peter Dujardin, 757-897-2062, pdujardin@dailypress.com
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