The Virginia school district where a 6-year-old boy shot a teacher earlier
this year is arguing that she should receive workers compensation for her
injuries instead of the $40 million she is seeking in a lawsuit.

Abigail Zwerner, 25, was reading to her first-grade class at Richneck
Elementary on Jan. 6 when one of her students with a history of behavioral
challenges and violence pulled out a gun and shot her in the hand and
chest with a single bullet.

Her lawsuit accuses the school district of gross negligence, according to
court filings.

She was hospitalized for almost two weeks and told NBC News last month she
was still in shock and still had nightmares about the shooting. The case
rattled the military shipbuilding community in coastal Virginia and
garnered national debate about gun and school violence.

Zwerner sued the Newport News school district in April, claiming
administrators acted negligently when they failed to heed warnings the boy
was dangerous and ignored reports on the day of the shooting that he had a
gun.

The Newport News School Board said in its filing on Wednesday that
Zwerner's injury falls under Virginia workers compensation, which it said
covers assaults against employees.

"Plaintiff was clearly injured while at work, at her place of employment,
by a student in the classroom where she was a teacher, and during the
school day," the school board said.

SHOT TEACHER SUES: Virginia teacher sues school district for gross
negligence, seeks $40 million

The filing, which was provided to USA TODAY by school district
spokesperson Michelle Price, also argues against Zwerner's assertion in
her lawsuit that she reasonably expected she would be working with
elementary-aged children who wouldn't be a danger to her. The district
cited cases of violence against teachers by students from across the
country and in Newport News.

"While in an ideal world, young children would not pose any danger to
others, including their teachers, this is sadly not reality," the filing
says.

"This is exactly why Plaintiff strategically focuses on the use of a
handgun as opposed to some other weapon with less perceived notoriety and
shock value, even though serious injuries can be inflicted with scissors,
knives, pencils, rocks, chairs, and hands."

The district argued if the child had stabbed Zwerner in the neck with
sharp scissors rather than shooting her with a gun, there would be no
question the injury would fall under workers compensation. Zwerner refused
to accept workers compensation and filed her lawsuit instead, the school
board claimed.

In a statement provided to USA TODAY on Friday by attorney James Toscano,
Zwerner's legal team said nobody would agree that a first-grade teacher
should expect one of the risks of teaching is getting shot by a student.

"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," the statement reads. "Teachers across the district will
be alarmed to learn their employer sees this as part of the job
description."

The boy used his mother's gun, investigators found. While prosecutors have
said the child would not face any charges, his mother was arrested earlier
this month and charged with felony child neglect and recklessly leaving a
loaded firearm so as to endanger a child. USA TODAY is not naming the
woman in this story to protect the identity of the child. The boy has
received mental health treatment in a hospital since the shooting, his
family's attorney previously said.

Zwerner claimed in her lawsuit that school administrators had multiple
warnings on the day of the shooting that the boy might have a gun and be a
danger. The lawsuit also said Zwerner would regularly raise concerns about
the child's behavior, and that he had a well-documented history of
violence including a previous incident when he "strangled" a kindergarten
teacher.

The boy's backpack was searched before the shooting, but Zwerner's lawsuit
said she saw him take something out of his backpack and put it into his
pocket, but an assistant principal said that the boy's �pockets were too
small to hold a handgun and did nothing."

Diane Toscano, one of Zwerner's attorneys, said the school administration
�was paralyzed by apathy� and didn�t take actions including calling
police, removing the boy from class or locking down the school.

READ MORE: Virginia 6-year-old who shot his teacher exposes flaws in how
schools treat students with disabilities

The district also pushed back on Zwerner's argument that the child should
have been removed from her class due to his behavior. The district said he
was in the process of being evaluated and treated for possible ADHD but
the evaluations were not yet complete. The district said Zwerner agreed
with the plan at the time, which included removing previous measure put in
place such as a parent accompanying him to class because his behavior had
been improving.

Educating the boy "through his behavioral evaluation and educational
journey" was part of her job description, the district claimed.

Zwerner's lawsuit names the Newport News School Board and several school
district officials, including former Superintendent George Parker III, as
defendants. The suit says Zwerner suffered bodily injuries, physical pain,
mental anguish, lost earnings and other damages.

Contributing: The Associated Press

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