Into the Weeds:

A jury in Newport News Virginia awarded $10 Million to Abby Zwerner, a former teacher who was shot by a 6-year-old student where the ex-assistant principal Ebony Parker was accused of ignoring repeated warnings that the child had a gun.  The suit was based upon the precedents established by Thomas H. Roberts & Associates, PC in the Virginia Supreme Court case of Cromartie v. Billings (2002).  In rejecting an earlier attempt by the defendant to escape the consequences of her failure to search the child for the weapon in the face of repeated warnings that the child had brought a gun to the school, Judge Matthew W. Hoffman, Chief Circuit Court Judge for Newport News, quoted from Cromartie, stating “Gross negligence is the absence of slight diligence or the want of even scant care.” Cromartie v. Billings, 298 Va. 284, 297, 837 S.E.2d 247, 254 (2020).

It is well-established that a claim of negligence is only actionable if there is a legal duty, a violation of the duty and consequent damages. The Virginia Supreme Court in Burns v Gagnon, 238 Va 657 (2012) explained that generally a person does not owe another a duty to protect them from the conduct of the third person, particularly in reasonably unforeseen acts of criminal assault.  However, an exception applies if a special relationship exists between the defendant and the third person which imposes a duty upon the defendant to control the third person’s conduct or between the defendant and the plaintiff which gives a right to protection to the plaintiff.  Examples of this include common carrier-passenger, business proprietor-invitee, innkeeper-guest and employer-employee.  The Virginia Supreme Court in Burns declined to expand the special relationship exemption to principal-student relationships.  The Newport News court rejected the duty arising from a “special relationship”.

The Newport News court also rejected the plaintiff’s claim of negligence per se based on the violation of statute, in this case Va Code § 22.1-279.3:1 which requires certain school authorities to report incidents involving the “illegal carrying of a firearm” to the division superintendent and to the principal or his designee, because the facts failed to meet the seven elements necessary for that claim.  It failed to meet the first element requiring a showing that the defendant had a duty of care to the plaintiff, which it rejected in the “special relationship” analysis. 

The Newport News case however rests upon a slightly ugly legal reality.  Had the defendant ex-assistant principal Parker simply ignored the multiple complaints that the six-year-old brought a gun to school, she would not have a $10 Million judgment against her.  But by assuming the duty, by taking some action, the law imposed upon the ex-principal the duty to act carefully is she acts at all.  The common-law principle of “assumption of a duty” requires that one who assumes to act, even if gratuitously, may be liable for physical harm to that person or to others if she fails to exercise reasonable care in performing the assumed tasks.  That liability comes if by failure to exercise reasonable care increases the risk of such harm or she undertakes to perform the duty owed by another or the harm is suffered because of reliance of another or the victim.  Whether defendant ex-assistant principal Parker assumed a duty was a question of fact for the jury. 

The final question and lynchpin to the $10 Million verdict is if defendant Parker assumed the duty, whether she loses the sovereign immunity that government workers enjoy for simple negligence by so seriously failing to act reasonably that the failure amounted to “gross negligence”. 

The Newport News Court explained “Although governmental employees enjoy sovereign immunity from acts and decisions that are considered negligent, they may still be held liable for acts of gross negligence. “Gross negligence is the absence of slight diligence or the want of even scant care.” Cromartie v. Billings, 298 Va. 284, 297, 837 S.E.2d 247, 254 (2020) (citing Colby, 241 Va. at 133, 400 S.E.2d at 189). “‘Willful and wanton negligence is action undertaken in conscious disregard of another’s rights, or with reckless indifference to consequences with the defendant aware, from his knowledge of existing circumstances and condition, that his conduct probably would cause injury to another.” Cromartie v. Billings, 298 Va. 284, 297, 837 S.E.2d 247, 254 (2020) (quoting Green v. Ingram, 269 Va. 281, 292, 608 S.E.2d 917, 923 (2005)).” Zwerner v. Newport News Sch. Bd., 2025 Va. Cir. LEXIS 247, *16

The jury heard that Zwerner went to Parker’s office and warned that the boy was in a violent mood.  Zwerner reported to a reading specialist that she had seen the boy take something out of his bag and put it in his sweatshirt, but the specialist searched the backpack and told Parker – and Parker responded that the boy’s pockets were too small to hold a handgun and did nothing. When another student told a teacher that the boy had shown him a gun in his pocket during recess, which was conveyed to Parker, Parker said the backpack had already been searched and took no further action.  Finally, when a guidance counselor asked Parker for permission to search the boy again, Parker was alleged to forbid him from doing so saying the boy’s mother would pick him up shortly.  About one hour later the boy shot Zwerner.

The case may find its way to the Virginia Supreme Court to determine whether under the facts ultimately presented to the jury, there are any facts upon which a jury could reasonably find that defendant Parker assumed any duties and secondly whether Parker failed to exercise even slight diligence or “scant care.”