Part 5 of the series Judicial Round Up – Corralling Cases That Affect Schools
Daniel N. Bellerive, Sedor, Wendlandt, Evans & Filippi, LLC
This year, our firm’s lawyers are rounding up the cases that affect school districts in Alaska and throughout our country. In this fifth installment of our “Judicial Round Up,” instead of looking at a case that sets a national legal precedent, we pause on the dusty trail to discuss a tragedy that sent shockwaves through the education community and the specific legal considerations arising from it.
In November of this year, a jury awarded $10 million to a teacher, Ms. Zwerner, who was shot by a six-year-old student in her first-grade class. Ms. Zwerner brought a lawsuit against the Newport News (Virginia) School Board and various administrators. While several claims were dismissed, the case proceeded to a jury against the assistant principal breaching an assumed duty of care.
The Background
An investigation of the events leading up to the shooting in 2023 details findings consistent with a student who had significant behavioral issues throughout his time as a student and school actions that were not commensurate with those issues.
Beginning with the student’s kindergarten year, he was disruptive, aggressive, and violent. He hit counselors, kicked staff, and in one 2021 incident, choked a teacher until she couldn’t breathe. Rather than implementing a meaningful behavior intervention plan, the school sent the child to a different preschool.
When the student was readmitted in the 2022-23 school year, the school relied on unverified representations regarding his schooling in Chicago and lacked his kindergarten records. He immediately displayed similar behavioral issues, requiring shortened hours and a parent’s presence in class.
The Day Of
On the day the student shot Ms. Zwerner, the requirement for a parent’s presence had lapsed or was not enforced. Multiple reports were made that arguably should have prevented the incident:
- First Warning: Two students told a teacher the student had a gun. The teacher saw the backpack but the student refused a search. The teacher followed protocol and reported this to the assistant principal (AP). The AP took no action and sent the teacher to oversee testing.
- Second Warning: Ms. Zwerner saw the student acting suspiciously with his backpack and pockets. Another teacher searched the bag but found nothing. She reported this to the AP, who dismissed the concern, stating the student had “little pockets.”
- Third Warning: Another student told a teacher the shooter showed him ammunition, had a gun, and threatened him. This was reported to the AP, who responded that the backpack had already been searched.
- Final Request: Another teacher asked if the student could be searched. The AP refused permission to search the student or contact law enforcement, stating the mother would pick him up soon.
At 1:58 PM, the student removed a firearm from his pocket and shot Ms. Zwerner.
Legal Considerations
Ms. Zwerner’s case focused on the “assumed duty of care.” She asserted that the AP, by receiving multiple warnings and failing to act, breached an assumed duty to ensure the student did not possess a firearm.
Virginia and Alaska use similar analyses for the assumption of duty. Both states recognize that when a person renders services necessary for the protection of another, they are subject to liability for physical harm resulting from a failure to exercise reasonable care.
The Alaska Supreme Court has relied on this analysis to support finding the existence of a duty to exercise reasonable care in a function assumed by the State. In R.E. v. State, parents sued the state for negligently licensing the daycare center their child was abused at. 878 P.2d 1341 (Alaska 1994). The Alaska Supreme Court held that the State owes a duty of care to patrons of licensed day care facilities to take reasonable steps to prevent harm. Supporting that holding, the Court noted its consistency with traditional common-law rule creating a special relationship between one who voluntarily undertakes to render services to another. Under the common law analysis, the Court found that where the State voluntarily undertook to license day care facilities, it assumed a duty to exercise reasonable care in carrying out that function.
Furthermore, while sovereign immunity often protects government employees, Virginia law recognizes that this immunity does not cover gross negligence: it does not cover acts reflecting a lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great that it appears to be a conscious violation of other people’s rights to safety. In contrast, sovereign immunity may protect government employees when they are negligent and have failed to behave with the level of care that a reasonable person would have exercised under the same circumstances.
In Ms. Zwerner’s case, the jury found the AP’s failure to act—despite three separate warnings—constituted a grossly negligent breach of this duty. While Alaska’s courts have not yet reached the same conclusion regarding immunity in this specific context, districts must be cautious.
Practice Pointers
Before we head back down the dusty trail, we offer the following “Practice Pointers” to connect this case with practical suggestions for Alaska school administrators:
- Take Threats Seriously. When students or staff report a weapon, immediate action is required. You should contact law enforcement immediately when there is a report of a weapon at school and be aware of the circumstances that different investigative tools—such as locker, backpack, and vehicle searches—are available. Assumed duties can trigger liability if an administrator receives specific, credible information and doesn’t act with reasonable care.
- Verify Records. The lack of kindergarten records and unverified transfer information left a blind spot in the student’s history. Ensure your enrollment protocols require accurate and complete records.
- Protocol Over Assumption. In this case, the assumption that a backpack search was sufficient—despite reports that the weapon was on the student’s person—was catastrophic. Follow established threat assessment protocols rather than dismissing concerns based on assumptions.
