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'What is the degree of negligence?' | A legal look at the pending Richneck Elementary shooting lawsuit

Attorney for teacher Abby Zwerner says school administrators were notified multiple times prior to a six-year-old shooting the first-grade teacher

NEWPORT NEWS, Va. — As the alleged decisions -- or possible lack thereof -- by Newport News school administrators are under scrutiny in the high-profile shooting at Richneck Elementary School, the focus now shifts toward the legal battle moving forward. 

Diane Toscano, attorney for Richneck teacher Abby Zwerner -- who was shot by her 6-year-old student this month -- told media this week they’re pursuing legal action against the Newport News school division after warning signs allegedly went unheard by school administrators.

Legal analyst Ed Booth tells 13news Now a major part of the case now involves the idea of "Sovereign Immunity", or the idea that the government cannot be sued unless it allows for it to be. However, certain cases and details can break through those protections.

"Ordinarily, school officials are immune from acts of simple negligence or mistakes," he said.

The legal precedent applies to government entities and their employees, or in this case, a public school division. Booth said sovereign immunity protects teachers and school administrators against negligence, but they're not protected in instances of gross negligence. 

“There is no sovereign immunity for what is considered gross negligence. Case law outlines it: gross negligence is a higher level. It’s basically the want of even slight care. It’s above simple negligence, making mistakes, and that sort of thing. An example would be, 'Was no care given at all?' Then you can plead and perhaps prove gross negligence. Here, the multiple acts in which the school is alleged to have done something -- failed to act when given information -- that's a prelude," Booth said.

The difference between whether the actions that day constitute "negligence" or "gross negligence" could be a major focus for the case, Booth said.

Newport News Public Schools policy mandates school officials to report threats to law enforcement, which a Newport News Police Department spokesperson confirms did not happen.

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