Will Employer Negligence Erode Exclusive Remedy

Published January 8, 2026

 By Eddy Canavan, ARM, AIC

In Virginia an employee was able to secure a civil judgment for a work-related injury based on the gross negligence of the employer. This case bypassed the critical fundamental workers’ compensation principle of exclusive remedy.

Over one hundred years ago, employers and employees entered into a grand bargain establishing workers’ compensation benefits. Employees surrendered their ability to sue the employer civilly in exchange for the employer providing benefits on a no-fault basis.

States have established their own rules and interpretations on how benefits are delivered. Few states have specific rules and enhanced benefits if it can be proven an injury was the result of the employer’s gross negligence.

Workers’ compensation is the employee’s exclusive remedy in the event of a work-related injury. This includes injuries caused by co-workers. Customarily, injured employees are allowed to file a civil suit against negligent third parties.

A recent case has challenged this longstanding principle concerning exclusive remedy.

On January 6, 2023, Abigail Zwerner was shot by her 6-year-old student at Richneck Elementary in Newport News, Virginia. As a result, Zwerner suffered gunshot wounds to her hand and chest, narrowly missing her heart. The bullet remains lodged in her chest.

In Virginia, Workers’ Compensation is the exclusive remedy for those injured on job, unless the employer fails to secure coverage or the employee is the victim of a sexual assault.

Initially when Zwerner attempted to pursue a recovery for her injuries civilly, Newport News City Public Schools District argued that Workers’ Compensation was Zwerner’s only legal remedy.

The matter was heard by the Honorable Judge Matthew W Hoffman of the Newport News Circuit Court and ruled that the civil action go forward. The Judge rationalized this ruling by stating that Zwerner’s injury “did not arise out of her employment and therefore did not fall within the exclusive provisions of workers’ compensation coverage.” Further, Judge Hoffman outlined, “the danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher.”

According to the National Center for Education Statistics, from 2000 through 2022, there were 328 casualties, including 131 killed and 197 wounded, in active shooter incidents at elementary and secondary schools.

So, unfortunately, the danger of being shot by a student while at work at an elementary or secondary school is not unique to the job of a teacher.

A civil suit was filed by Zwerner against the Assistant Principal, Dr. Ebony Parker, on grounds of gross negligence. Other individuals named in the suit, including the Superintendent were dismissed, leaving only Paker as the remaining defendant.

Let us run down the events of January 6, 2023, as presented by the plaintiff in this case.

At around 11:15 am, Zwerner notified Dr. Parker that the 6-year-old student was in a “violent mood” and had threatened to beat up a kindergartener earlier that day.

Around 11:45 am, two students informed a reading specialist, Amy Kovac, that the boy had a gun in his backpack, which the student denied. Kovac reported this to Dr. Parker.

Kovac also informed Zwerner that she witnessed the student removing an item from the backpack, placing it in his pocket. Kovac searched the backpack for the alleged gun, finding nothing. Dr. Parker stated that the student’s pockets were too small to conceal a gun.

Later in the day another student reported to a different teacher that he saw a boy with a gun and a bullet on the playground. This matter was reported to Dr. Parker, who stated the boy’s backpack was searched finding no gun.

The school’s guidance counselor, Rolonzo Rawles, asked Dr. Parker for permission to search the boy for a gun, conduct a pat down, which was not granted by Dr. Parker. Dr. Parker advised Mr. Rawles to “wait the situation out” as the school day was coming to an end. Also, this student was on a modified schedule resulting in a parent arriving soon to pick the student up. The student was allowed to return to class along with 15 others.

Just before 2pm, the 6-year-old pulled a 9mm handgun from his pocket, aiming it at Abby Zwerner and shot her as she sat with students.

Zwerner was allowed to file a $40 million dollar lawsuit against Dr. Parker citing gross negligence. A jury agreed and on November 6, 2025, awarded Abigail Zwerner $10 million. The jury stated Ms. Parker acted with gross negligence in her handling of the situation.

So, does this mean that violent unexpected events not peculiar to an occupation be exempt from the principle of exclusive remedy?

Should Zwerner have been limited to a third-party action against the student’s parents?

Should an office worker electrocuted by an exposed wire be allowed to file a civil lawsuit against their employer? This injury is not peculiar to the occupation.

The principle behind the grand bargain eliminated the ability to argue negligence and instead provided statutorily defined benefits on a no-fault basis.

The Zwerner case allowed a civil lawsuit on the premise that being shot at work did not arise out of employment. This resulted in a jury award based on negligence. These two findings go against the grain of fundamental principles of workers' compensation benefits.

Alta Claims & Insurance Services provides auditing, consulting and claims oversight concerning workers' compensation administration. Contact me at eddy@altaclaimsservices.com or visit our website at https://betterwithalta.com to learn more.