A Teacher Injured in a School Shooting: When Is the School Responsible?

Episode Notes

Transcript

Announcer:

Workers Comp Matters, the podcast dedicated to the laws, the landmark cases, and the people that make up the diverse world of workers compensation. Here are your hosts,

Alan Pierce:

Jud and Alan Pierce. Welcome to another podcast here on the Legal Talk Network. This is Alan Pierce, along with my law partner, son, and co-host, not necessarily in that order of importance. Judson Pierce talking to you today from Salem, Massachusetts at Pierce Pierce Napolitano. We’re always looking for interesting guests and interesting topics, and we have both. For this edition, we have a young lady who just passed theBar and is now beginning her law career in the state of North Carolina. Judson will give you a little details on Katie Jean, but she wrote a paper that was submitted as part of a student writing competition for the College of Workers’ Compensation lawyers. It’s the John F. Burton Jr. Student essay competition. Her paper was the winning paper. It is entitled Rethinking the Intent Exception in the Case of Teacher Violence in our Public Schools Modifying to include Willful and Wanton misconduct. Quite a mouthful and quite an interesting topic. And Jed, would you introduce Katie to our audience?

Judson Pierce:

Happy to. Thank you Alan. Katie is a 2025 graduate of Penn State Law, an incoming associate at k and L Gates where she’ll be joining the firm’s finance practice in Charlotte. And during law school, Katie served as an articles editor for the Penn State Law Review and gained practical experience working in Penn State’s Entrepreneurship Assistance clinic providing legal services to small business owners and entrepreneurs in Pennsylvania. Alan, take it away with the first question, if you would,

Alan Pierce:

Katie? Yeah, very nice to meet you. When your paper was published and I saw the title, I realized this is really focusing on a rather narrow area of our law, and of course Jud and I and our colleagues do essentially workers’ comp as our main area of specialty, and we’ve had any number of cases of teacher violence in our public schools, but have never faced a particular set of facts that would go beyond ordinary happenstance of violence to include willful and want and misconduct. So you’re not a workers’ comp lawyer now, and I guess you took a workers’ comp course at Penn State. So what drew you to this particular topic? Where did it come from?

Katie Jean:

So I took a workers’ compensation course at law school for our writing seminar. My professor, we obviously had to write an essay for that, and he gave us free reign. He said, choose any topic you want to as long it’s as it’s connected to workers’ compensation. As I started looking at different topics and just doing general Google searches, one of the first things that came up was the case of Abigail Zaner out of Virginia, who was injured by one of her students back in 2023. And there had been recent developments in her case in 2024 regarding the applicability to workers’ compensation. And so I went in and spoke to my professor just about how can I talk about this issue of teacher violence in schools? And as I started doing my research, I realized it goes beyond just what we see on the news in terms of those school shootings, but every single day within the actual student teacher relationships that they’re experiencing some type of violence and it’s a huge problem just nationwide.

Judson Pierce:

So what is the current state of the law? I know each state has different takes on whether or not the exclusivity of workers’ compensation is established here, but what is your take on the amount of states that have an additional ability to find remedy such as in tort law?

Katie Jean:

Yeah, so I mean specifically tort law, there aren’t many states when I was doing my research on it. Essentially every single state within workers’ compensation, everything is defined accidental unless it’s deemed intentional. What they define as intentional is very specific. Most states require that you intend both the actual harm that occurred and the act, and they look at specifically within schools. They wouldn’t look at just a student, but they would look at those school officials or those other staff members who are in charge. They would have to find that intent there. So it is a very narrow definition and narrow space to try to get out to find those other different remedies.

Alan Pierce:

I don’t want to make light of this, Katie, and you give some chilling statistics in your introduction and maybe we can touch on that briefly. But I have to confess that when I first saw the title, I was thinking of my own experience in school and most of the teacher violence was directed at me. My knuckles were sore many times because of the ruler that went off. But we’re not talking about teacher on student, we’re talking on student on teacher. Although I’m sure a lot of my classmates of my vintage would, especially those of us who went to, I didn’t go to Catholic school, but those that did go to Catholic school can talk about some of the nuns they had, but give us a children overview how big a problem this is.

Katie Jean:

It’s definitely been a problem for a long time, but a lot of studies that have been done have shown that post pandemic with everyone going back into school, it has significantly gotten worse. There were studies done, for example, within the 20 22, 20 21, 20 22 school year by the A PA, they surveyed about 15,000 different staff members and they found that within there 80% reported threats of physical violence by students and 56 per percent reported actual physical violence against the teachers or different staff members by students. There was another huge study done within the 2022 and 2023 school year with about 49,000 staff members, and they found that, again, one in five staff members experienced some type of violence from their students. So it definitely was a big issue prior to the pandemic, but they have found this widespread increase just throughout the nation of student on teacher violence.

Alan Pierce:

And of course your paper makes a distinction, but there are basically two types of risks that would cause fear or harm to teachers or for that matter, other school personnel including students that would be external violence such as school shootings of which God knows we’ve had way too many. And then there’s what I would call internal school violence where it’s coming from the students. We’re really talking about the latter. Are we not teachers that,

Katie Jean:

Yes. Yeah.

Alan Pierce:

Okay. So you mentioned at the outset this Warner case, that’s Z-W-E-R-N-E-R that was in your papers Warner versus Newport News School Board. Tell us maybe the facts of that case so we can get an understanding of a particular set of circumstances that you are driving at.

Katie Jean:

Yeah, so this happened in 2023. The teacher, Ms. Warner, she was a first grade teacher in Virginia and she had a student who had a long list of a disciplinary history. The day of the shooting, for example, he had reports to the school and to school administrators on four different occasions of instances of he may have had a gun, they saw him putting something in his pocket, he was acting very odd that day. He supposedly showed a different student at recess the gun and the administrators just ignored those concerns that were brought to them. And within about, I think it was 20 minutes after that last report, the first grade student took out the gun and shot the teacher. And so is, it’s still an ongoing lawsuit with zaner against the school board with this, but essentially the school is trying to limit her to workers’ compensation and she is arguing outside of the workers’ compensation framework and trying to do a civil lawsuit and tort for just the lack of response from the school.

Judson Pierce:

Is she also thinking about accepting the workers’ compensation benefits as they may be in addition, seeking the tort remedy, or is she want to totally exclude herself from the comp back?

Katie Jean:

So last I read, she did not accept the workers’ compensation. She actually didn’t file, actually during the time when I was writing this paper, one of the big contentions was that she didn’t file for workers’ compensation, just went straight into a civil lawsuit and the school filed it on her behalf. So there’s mixed opinion on why they filed it somewhere arguing that or her attorneys, for example, were arguing that they filed it to try to just cut off this lawsuit. The school was saying that they filed it so that she wouldn’t miss the deadline and she could have funds available for the different types of surgeries she would need. But based off of the last things that have been going on in her case, she chose not to file it and just went straight into the civil suit.

Alan Pierce:

And you didn’t cover this in your paper, but of course victims of school violence, especially if it comes from let’s say a shooter, a student who somehow got his or her hands on a firearm, there are circumstances where the parents can be sued for negligent entrustment or supervision of their child. Your topic goes outside of that. We’re focusing primarily on the employer, the school department by failing to heed the obvious.

Katie Jean:

Yes, correct.

Alan Pierce:

And that really gets us into which I think we’ll pick up after the break, understanding that when you sue a defendant in civil court for negligence or tort damages, generally all you have to prove is negligence, carelessness, breach of reasonable duty of care. However, the point that you make, and I think our listeners need to understand that it’s not and simple negligence won’t be enough, gross negligence won’t be enough, and the category that you’ve identified is something called willful and wanton misconduct, otherwise known as serious and willful misconduct, otherwise known as quasi-criminal misconduct. So what I’d like to do when we come back from our break is kind of have you explain the difference from those degrees of misconduct and at what point does it trigger a potential cause of action against an employer school district. So we’ll be right back with Katie Jean to further our discussion on teacher violence and their remedies.

Judson Pierce:

And we’re back before the break, we were discussing about the different degrees of intent and what a plaintiff would have to prove. Could you go into that a little bit with our audience?

Katie Jean:

Normally, like you guys were talking about earlier with torts is just mere negligence. When these court cases are looking at trying to define these different definitions within tort, they look at negligence almost like inadvertence, something that it did happen, it could have possibly been prevented, but there’s no real way to say whether or not it could have. Again, this is just kind of how the court cases are interpreting it within tort then there is what they call the twilight zone, which is gross, willful, wanton and recklessness within negligence, which then goes into the intent, which is the furthest away within that the gross negligence. And the willful and wanton currently under the definitions fall within that willful and wanton. They kind of look more at being closer to intent. So the key distinction is within those state of mind, so intentional towards they look at the awareness, the awareness of the actual injury occurring and the awareness of the act. And so the argument with willful and wanton is that your conduct is so recklessly disregarding that heightened degree of injury, whether it be in schools, not having the safety procedures, not looking to actually take action when you hear from the teacher of these starts violence from students or you have their historical conduct. And so that heightened awareness and you actually being aware of the risk of harm is what then transforms essentially this willful and wanton conduct to fit into the mold of this intentional tort.

Alan Pierce:

Could you give us an idea, first of all, of the 50 states, are there jurisdictions that do not recognize any additional remedy for an injured worker to pursue in the case of egregious employer misconduct? Are there some states where it’s just workers’ comp and you can’t do anything further?

Katie Jean:

So actually in Virginia with the Warner case, Virginia considers all harms to be accidents. So in their definition, they specifically say every single one. So they say that an accident is anything that was done truly accidentally out of ordinary negligence, recklessness, gross negligence, they name every single piece. And so that’s part of the reason why in this Warner case there is so much back and forth going on because of how broad their definition is to cover everything. And there is no essentially exception to fall outside of it.

Alan Pierce:

And some jurisdictions, in the case of intentional misconduct, a willful and want and misconduct, they do allow the injured party to go into civil courts, but other states have a remedy within the workers’ comp statute. Have you found some of those states and give us an idea of how that works where you don’t go into court, but you can get additional workers’ comp benefits?

Katie Jean:

Yeah, so for example, I know Massachusetts in certain scenarios, and I believe Pennsylvania now with certain type of people within police or firefighters, they do have increased awards if they do find intentional misconduct. So some places it’s double whatever your award would’ve been under workers’ compensation. Others it can be almost triple. So it kind of just depends on each state. But some of them do allow within the workers’ compensation scheme to get heightened awards monetarily, but they still cut off any type of outside remedy.

Judson Pierce:

And the benefits of doing an extra case or providing for additional benefits isn’t just monetary, right? I mean it’s a public policy thing of deterrence. Can you talk a little bit about what you found with regard to that?

Katie Jean:

Yeah, so under the original workers’ compensation scheme, it arose out of this boom of industrialization. And so they weren’t focused as much on this idea of deterrence, mainly because again, they just wanted these employers who were getting injured to just get money quickly and they didn’t have to try to fight through these lawsuits that can go on for years and cost a lot of money again for these workers who are already injured and out of work. Part of this with it too, with the deterrence of tort versus workers’ compensation is that a lot of the costs within workers’ compensation is put onto the consumer, whether it be the cost of workers’ compensation insurance, they put it into the price that the consumers pay. So the deterrence value is pretty low there just because of that. But in my paper, I talk about the differences between the goals of workers’ compensation and torts and how these rationales that normally apply to workers’ compensation just don’t hold up as strongly again to school staff and teachers just because again, there isn’t a consumer that you can pass off these costs to in a school, whether it be the cost of actually paying out through workers’ compensation or a civil lawsuit, the school’s paying that through the same thing of tax dollars, so it’s coming through the same type of money.

So the deterrence value is stronger for schools and teachers versus how workers’ compensation might apply again in a true different area of commerce.

Alan Pierce:

I’m glad you brought up that point. And before we take our next break, I just want to flesh that out. I was going to ask you about that. We bring double comp claims here in Massachusetts, and as you mentioned, if an employer is guilty of serious willful misconduct, all benefits can be doubled, including medical benefits. So if somebody had medical bills of $10,000 that the insurance carrier paid and they were found to be the employee was serious and willfully misconduct, the employer would pay the injured worker the $10,000 as well. We do find that we have an easier time rationalizing bringing a claim against a private employer that is a profit-driven entity who is cutting corners to the detriment of the injured workers by exposing them to safety violations needlessly as compared or contrasted to a school. As you mentioned, the deterrence level is, we know no school department principal administration intends their teachers to get hurt. And you’re right, it’s tax dollars. So when we bring these cases, we have to be mindful of the tribunals that we’re going into, whether it’s the courts or the industrial boards, and unless it’s really, really a case that screams out for a remedy, I think we’d have a harder time convincing, or would we even want to convince somebody to tag a school department for punitive damages as opposed to employers profiting? So did any of that seem to come through in your research?

Katie Jean:

Yeah, a little bit, but I think in terms of the schools, it’s less about trying to get the money out of them and more about in terms of deterrence, looking at what those costs are. And for example, a lawsuit is at the end of the day going to be more expensive for the school versus paying out workers’ compensation, but it would deter them in terms of putting in those safety measures and taking things seriously because then one, possibly less injuries, but also you’re saving self from the lawsuits because you did try to put students into alternate placements, taking the threats seriously and doing the investigations and looking into it. So it takes in those preventative measures. Now, will lawsuits still go through of course, but I think it’s less about trying to get as much money you can from the school, but showing them that there is this avenue that is open if there aren’t safety measures and preventative measures put in place.

Alan Pierce:

We’re going to take another short break and we’ll be back to conclude our conversation with Katie Jean, we’ll be right back.

Judson Pierce:

And we’re back with Katie. Jean, you mentioned a few cases in your article. One of them is Denham, sorry about pronunciation here, Val Ingham versus Clover Park School District. Could you tell us a little bit about the facts of that case and the outcome?

Katie Jean:

Yeah, so this case was with two special education instructors. They sued the school district under the state’s intent exception to the workers’ compensation scheme to try to get into civil lawsuit. They were essentially, both of these instructors were injured by a special education student within the 1998 and 1999 year. There was 50 documented injuries by that student. There was 300 additional that were not formally documented. They had behavior evaluations on the student, which showed that he injured students and teachers daily. And leading up to that attack, one of the instructors notified the administrators four times about that student’s increasing aggression throughout the week. And so they sued the school essentially on this intent section to the workers’ compensation that the school knew about this student’s dangerous propensities and really didn’t do anything about it, which caused their attack and their injuries. So the court ruled against the teachers and said it still fell within the workers’ compensation scheme.

So this was in Washington, and they had the intent section, which was a substantial certainty. They saw it as two prongs, which is that the employer had actual knowledge that injury was certain to occur, and that the employer willfully disregarded that knowledge under the substantial certainty prong. The court said that they didn’t have enough knowledge, only knowledge that injury is starting to occur will meet the first prong. They looked at the student, while he did have dangerous, there was a history of it, the school didn’t know exactly when or how this next injury would occur, so they didn’t have that knowledge. The second one, with willful disregard of the knowledge, the court looked at essentially the effectiveness of any remedial action, and they showed that essentially because the administrators contacted the student’s doctor and ordered the teacher’s to document his behavior and requested a behavior assessment that they didn’t willfully disregard his behavior. And so they didn’t meet that prong either.

Judson Pierce:

This was an interesting quote from the dissent. Justice Sanders said, argued the majority’s analysis was an unsupported effort to sugarcoat a bad result for the employer, and criticizing the certainty requirement as pushing the level of predictability required into the stratosphere and that a more reasonable standard, whether an employer knowingly placed an employee in a situation where injury was highly probable would be appropriate. Wouldn’t that broaden it to so many different injuries in the workplace where people assume the risk of working in a certain area? And what are the limitations of maybe broadening it to that extent, do you think?

Katie Jean:

I mean, one of the things with workers’ compensation in these cases is that each one is very fact intensive. So I think that that at least helps with limiting the scope of what cases get in and what cases get out. I think a lot of people could say something is highly probable to occur. I mean, even in everyday life, if you’re driving a car, it’s highly probable, technically based off statistics that you could get in a crash. But I think that’s for the courts to look at each case. I think here again, of having over 50 documented injuries, 300 undocumented, and that’s just within one year, and the next year they still had 57 different written memoranda that they can see that while the school may have not known exactly how the student would’ve injured the teachers or exactly what day and time it would’ve occurred, they could see that at some point based on his history and all of these reports, that if there weren’t other safety measures put in place for the student that some type of injury worse than what had occurred in the past was going to happen at some point.

Alan Pierce:

Katie, I want to thank you for writing this paper. And in fact, as we were taking a deeper dive into Walling ding Ham case, I’m wondering if the defendant in that case weren’t the school district, but were a construction site in which there had been this number of safety issues, whether the court would’ve looked at it differently for the reasons we discussed before, we’re dealing with a profit making entity tearing a blind eyes post to it, school district. And by the way, this was the state of Washington, not Washington DC I believe. So to me, not really knowing too much about the case, I’m wondering if there might’ve been a better result for the injured worker, had her employer been a private entity as opposed to a public school.

Katie Jean:

And I think it would’ve just in the case actually, and I think that this goes a lot to the dissent, is they try to distinguish it from a case called Berkley and Boeing. Essentially, the employers got sick after being exposed to toxic fumes there. They said that that certainty standard was met because the employer knew that sickness was certain due to the predictability of sickness occurring once you are exposed to toxic fumes. While I was reading the case and kind of the rationale behind it, it was really hard, at least for me to decipher the difference between being exposed to toxic fumes and these teachers who had these documented injuries and these documented incidents. So I do think that if it were in a different setting beyond just a school and like you said something else, I think that there would’ve most likely been some type of different outcome.

Alan Pierce:

Well, I want to thank you for first of all doing this paper and secondly, winning the essay contest. Do you mind if I give our email address if anybody wants a copy of your paper?

Katie Jean:

Yeah, no, that’s perfect.

Alan Pierce:

And the reason you may want it not only for the substance of the story she tells, she has it very adequately and well footnoted with a wide variety of resources, both on the incidents and nature of school violence. 60% of teachers are afraid to go to school, 77% say they have faced violence from students, et cetera, et cetera, along with a lot of legal case citations and treatises. So if you’re interested in a copy of Katie’s paper, you can reach out to us here at Legal Talk Network. You can either email me or Jud, I’m Alan Pierce at ppn law.com, or [email protected]. If you want a copy of her paper, we’d be glad to send it out to you. So Katie, I want to thank you. I want to wish you well in your new career, and congratulations again on getting theBar results so quickly this fall and embarking on your career. And if your scholarship in this area in any way is indicative of your new challenges, I know that you’ll be highly successful. So for all of those of you who are listeners to this podcast, thank you for tuning in. We’ll bring you another show pretty soon, and thank you again for listening and go out and make it a day that matters. Bye-bye.

Judson Pierce:

Take care.

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