By Vaidehi Mehta, Esq. on April 10, 2023.
The Virginia educator who was killed by a six-year-old child in the classroom is seeking $40 million in compensation from the school where she taught because she failed to prevent the shooting.
Abigail Zwerner, 25, taught the first year for year of her birth at Richneck Elementary School located in Newport News, Virginia. Her students included a first-grade student who is not named in the lawsuit but is referred to by the name of “John Doe.” Zwerner was killed by Doe in the early part of January. She was hospitalized for two weeks. Hospital and had four operations. On April 3, she filed a lawsuit against the school administrators and the board of school and school board, claiming that they knew of the boy’s past violent behavior but failed to react when they saw warning signals that indicated the boy was carrying a firearm on him that day.
The Teacher’s Lawsuit
In a complaint of 20 pages filed on Monday, Zwerner accused grave negligence in Newport News School Board and various school district officials, including the former superintendent Dr. George Parker, III.
“Physical anxiety, mental pain . . . the loss of income . . . and earning capacity”–these are only some of the harms claimed by the schoolteacher was afflicted by the officials’ inability to take the necessary steps to stop the shooting incident on January 6, 2023. While that shooter “had a history of random violence,” her complaint says, school district officials have not adequately dealt with the student’s behavior issues.
Zwerner has alleged a range of different legal arguments in the suit, such as negligence, grossly negligent, and recklessness of the school in relation to the duty of care they were obligated to provide her with.
Different Types of “Negligence”
In order to prove a claim for negligence, she’ll need to prove the fact that school officials, as well as school district officials, had the duty of care, specifically the obligation to check Doe for guns or to take similar steps to avoid the type of injury he suffered. Zwerner will then need to demonstrate that the institution “breached” this duty, i.e., the school did not follow through with its obligation to conduct inspections and take other measures. The next step is to demonstrate “causation”–that she was shot due to the fact that the school did not act. Then, Zwerner needs to provide specific, quantifiable harm she suffered as a result of the incident (this is likely to be the easiest aspect, though certain of her injuries, like “loss of self-esteem,” are more difficult to prove than other ones).
In addition to “ordinary negligence,” the teacher also has claimed the more severe version of the tort referred to as “gross negligence.” This type of negligence is far more severe than normal negligence and can be described as a “failure to exercise even the slightest care” in protecting against harm to the level point of “willful indifference” or “recklessness.” The complaint filed by Zwerner details four examples of this type of negligence, which refers to numerous instances where the school district, as well as certain of its employees, failed to react appropriately with respect to Doe’s “known history of attacking students and teachers alike.”
School Protected by Sovereign Immunity?
Suppose the past is any indication Zwerner’s chances of obtaining substantial damages are low. Zwerner isn’t the only plaintiff to bring a suit against the school’s officials over failing to take steps to prevent the possibility of a shooting. She has the same problem that they faced with the lawful doctrine known in the legal jargon of “sovereign immunity.”
For instance, in March, an appeals court judge in Michigan dismissed a suit filed in the case of Oxford Community Schools, observing that the “governmental immunity” protected the school from liability in the event of an armed mass shooting that occurred in November 2021.
Sovereign immunity means that any level of government–including public schools and their employees–can’t be sued unless the government gives its consent. States offer exemptions from this immunity. However, it’s usually difficult to seek substantial damages from any government organization. It’s unclear how Zwerner will be successful in overcoming the legal hurdles in her quest to obtain compensation for the tragic incident she was involved in.