NEWPORT NEWS, Va. (WAVY) – Attorneys have asked a Newport News judge to dismiss a lawsuit filed against Newport News schools and former administrators by a first-grade teacher who was shot by a student at Richneck Elementary School.

Abby Zwerner, 25, was teaching her class when a 6-year-old student shot her on Jan. 6. Zwerner was seriously injured by the bullet, which went through her hand and into her chest, according to Newport News Police Chief Steve Drew.

Drew confirmed the student shot Zwerner with his mother’s legally-obtained gun. The boy’s mother, 25-year-old Deja Taylor, is charged with felony child neglect and misdemeanor recklessly leaving a loaded firearm so as to endanger a child. Her attorney, Jim Ellenson, said Taylor’s gun was secure, and she doesn’t know how her son got ahold of it.

Zwerner filed a $40 million lawsuit against the Newport News School Board, former Superintendent Dr. George Parker, former Richneck Principal Briana Foster-Newton, and former Richneck Assistant Principal Dr. Ebony Parker on April 3.

Zwerner’s lawsuit alleges gross negligence and reckless breach of duty against the school board and the former administrators. The lawsuit claims that the shooting was a personal attack against Zwerner and that the school board and administrators failed to protect her against the student despite multiple warnings that staff believed he had a gun.

Attorneys representing the school system and the former administrators filed a plea asking a Newport News Circuit Court judge to dismiss Zwerner’s lawsuit Wednesday. They argued that Zwerner’s injuries are covered under the Virginia Workers’ Compensation Act because she was shot while doing her job. The law provides benefits for employees injured on the job, but prohibits them from suing their employers if they were hurt during the course of their duties.

10 On Your Side reached out to Zwerner’s attorneys for comment, and received this statement:

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 6-year-old. 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.

Diane Toscano and Jeffrey Breit, attorneys for Abby Zwerner

The plea alleges that Zwerner has refused workers’ compensation benefits and that her attorneys are trying to circumvent the law by claiming the shooting was a personal attack on her. The schools’ attorneys call the handgun a “classic red herring,” and argue that injuries sustained in a school shooting would also fall under workers’ compensation.

“This is exactly why [Zwerner] strategically focuses on the use of a handgun as opposed ot 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 school attorneys argued. “If the allegations in the complaint substituted ‘sharp scissors’ for ‘gun’ and [the student] stabbed [Zwerner] in the neck in the classroom, there would be no doubt that the injury would fall under Workers’ Compensation.”

The school’s attorneys also argued that student-perpetuated violence is a reality in American schools, including those in Newport News. The plea cited a February 2022 report by the U.S. Department of Justice’s National Institute of Justice, which showed that over half of teachers in the country have experienced student-perpetuated violence.

The plea also points to Newport News educators who have been assaulted and injured at city schools, including educators who have been hit, kicked, and bitten.

The plea also provides new information about the 6-year-old shooter, including that he was being evaluated for and treated for possible ADHD. He’d reenrolled at Richneck Elementary School for first grade after he allegedly strangled a teacher in kindergarten and was transferred to Denbigh Early Childhood Center.

The student was placed on a personalized schedule at Richneck, which included his mother attending class with him and shorter school days, because of behavioral problems, including threatening students, refusing to do work, and arguing with educators, the plea states.

Taylor wasn’t in class with her son on the day of the shooting. Before winter break, administrators and Zwerner agreed that the student’s behavior had improved enough that he could have longer school days and parental presence wasn’t always necessary.

His behavior quickly deteriorated when he returned to school. He was upset after he wasn’t given something he wanted and broke Zwerner’s phone on Jan. 4, which led to a suspension the day before the shooting, the plea states.