Can an Injured Teacher Sue a Virginia School After Being Shot By a Student?

A lawsuit filed by a teacher who was shot by her six-year-old student has brought to the national conversation the limitations of Virginia’s Worker’s Compensation Law. 

 The Newport News instructor is suing the public school system, as this first-grade teacher was hospitalized for two weeks, and endured several surgeries after a bullet struck her hand and her chest. However, lawsuits for injuries that arise “in the course and scope of employment” are usually precluded by the Worker’s Compensation Bar.

Injuries to innocent employees from shootings, assaults, and other intentional injuries on the jobs, may be limited to Worker’s Compensation benefits under Virginia’s strict “Workers Compensation Bar,” which precludes lawsuits against employers, co-workers, and bosses.

In other words, if an injured worker’s employer has Worker’s Compensation Insurance, the injured victim cannot bring a lawsuit for their losses. They are limited to the payment of their medical bills and up to about nine years of partial-wage replacement benefits. Reports in the press agree that the injured teacher faces an uphill legal battle, as the Commonwealth of Virginia has uncommonly strict Worker’s Compensation Laws. Virginia Law generally prohibits negligence lawsuits against employers, coworkers, and bosses, as well as workplace-related assaults and fights. Personal injury lawsuits that might be viable in other jurisdictions are usually precluded in the Commonwealth of Virginia. 

One way that attacks in the workplace can get outside of Virginia Worker’s Compensation Law is by showing that they were unrelated to the job. In other words, if the attack was “personal,” then it may not be seen as “arising out of and in the course of employment.” If a fight at a job site arose because of a gambling debt, an argument over a boyfriend, or a drug deal, such events would not be seen as arising in the context of the employer-employee relationship.

Under Virginia Law, an injured worker must also show that the incident was from an “actual risk” of the job (click here to read more about actual risk). It is not enough under Virginia Law to simply show that the injury occurred during work hours, or at the workplace. This is what is known as the “positional risk doctrine,” which is accepted by many other states. Virginia requires the injury to result from an “actual risk” of the employment.

Even where there are OSHA violations and criminal convictions, an injured worker in Virginia usually cannot sue their employer, unlike the law in other states. However, a violation of a company safety rule, traffic ticket, or criminal conviction can be fatal to the disabled worker’s chances of collecting any worker’s compensation benefits under Virginia Law. That asymmetry is unfair and should be remedied by the legislature. After all, “what’s good for the goose is good for the gander.”

Many experienced Virginia Lawyers will be surprised if the teacher’s lawsuit can proceed after this shooting. Even if it does move forward, the evidence tends to suggest that the school board will almost certainly appeal, given the breadth of the Commonwealth’s Worker’s Compensation Laws. Worker’s Compensation Laws were supposedly a “grand bargain’ in the early 20th century between injured workers and employers. Labor and management struggled with how best to pay for industrial accidents. Would lawsuits in the courts be fair? Would an administrative system of limited benefits be faster and more just?

As a result of this “grand bargain,” workers lost the ability to bring a lawsuit against their coworkers, employers, or bosses, thus protecting these potential defendants from enormous payouts. However, the Workers Comp laws were supposed to make it easier to get compensation for workplace injuries, as the expense and complexity of lawsuits were removed by this administrative system. 

Partial wage loss replacement and medical bill coverage were what workers received in the trade-off. They did not have to prove fault (normally a huge barrier in lawsuits), to collect Worker’s Compensation benefits. While there have been many debates about whether the bargain is still a fair one, one thing is certainly clear: in Virginia, there is an asymmetry in the law.

Experienced Herndon Workers Compensation Lawyer Doug Landau has long campaigned to balance the laws in this area. He has represented employees who have been harmed as the result of violations of safety rules, the failure to provide necessary safety equipment, and ordered to work on roofs in weather despite the absolute certainty of serious injury.  This “asymmetry” is illustrated by the fact that in Virginia, employers can preclude an injured worker from receiving benefits if the employee is: in violation of a safety rule, breaks the law, or acts intentionally to harm another. The same cannot be said for employers. In other words, if an employer violates criminal or civil law, doesn’t provide necessary safety equipment, or is in violation of OSHA or other regulations, an injured worker in Virginia cannot bring a lawsuit. 

 If you were someone you know has been permanently injured as the result of a workplace incident or have any questions regarding worker’s compensation and personal injury law, please contact us at (703) 796–9055 or email