Attorneys representing the Newport 蜜柚APP School Board and former superintendent George Parker asked the Virginia Supreme Court to overturn a ruling that allowed former Richneck Elementary School teacher Abigail Zwerner, who was shot during class by a 6-year-old student, to sue for damages.
Additionally, the school board and Parker filed a motion asking the circuit court to dismiss the lawsuit, claiming they are immune from liability in the shooting.
A Newport 蜜柚APP Circuit Court judge ruled in November that and could instead sue for liability. The judge said the shooting did not 鈥渁rise out of her employment鈥� and that it was 鈥減ersonal鈥� to her, which are critical issues in deciding Worker鈥檚 Comp cases in Virginia.
鈥淭he law of sovereign immunity in Virginia makes the school board of Newport 蜜柚APP immune from tort actions as well as certain of its high-level employees,鈥� Annie Lahren, an attorney with Pender & Coward, said in an email. 鈥淏ecause of the Court of Appeals declining to take the interlocutory appeal, we felt now was the time to file these motions on behalf of these defendants.鈥�
In the petition to the state Supreme Court, counsel for the school board and Parker argue the circuit court was wrong to rule the shooting did not arise out of Zwerner鈥檚 employment because it focused on the use of a gun rather than the circumstances around her injury.
鈥淣either the parties nor the circuit court cited any legal precedent where the instrumentality used was a dispositive factor in determining whether the injury 鈥榓rose out of鈥� employment, and none appears to exist,鈥� the petition reads.
Additionally, they claim the circuit court was wrong to rule the injury was personal to Zwerner because the only evidence between the student and Zwerner was in her role as his teacher.
鈥淭herefore, even if John Doe鈥檚 actions against Zwerner were 鈥榩ersonal鈥� to her, that personal motive arose from Zwerner鈥檚 employment,鈥� the petition continues.
These filings come the same week a grand jury , who is also a defendant in Zwerner鈥檚 lawsuit, on eight felony counts of child neglect alleging 鈥渞eckless disregard for human life鈥� for her actions on the day of the shooting.
A special grand jury also released a 31-page report this week that examines what happened that day. Among the findings were that the boy鈥檚 gun jammed, likely preventing him from causing further injury to Zwerner and the other students in the class.
