There are moments that have the potential to change the landscape of our society. It’s a bold statement, but it’s true. We are currently in the midst of one of these moments with the potential to change our relationship with work and education in the United States. Most likely, you’ve already heard about this event and the ongoing litigation, as it has been well covered on national television. Here is a brief summary of the facts:
On January 6th, 2023, a 6-year-old student shot his teacher in their classroom. Fortunately, the teacher, Abigail Zwerner survived, but unfortunately, she is expected to suffer significant long-term effects. She has already had 4 surgeries on her left hand. Her doctors are uncertain if she’ll ever regain full use of it. She likely will have part of the bullet permanently lodged in her chest.
Zwerner has filed a lawsuit against school officials seeking $40 Million in damages. The school board is moving to dismiss the suit, claiming that this is a worker’s compensation issue.
The Thought Exercise:
Although the entire situation is terrible, it does raise an interesting thought exercise: What are the implications if we accept that getting shot is a reasonable risk to expect of educators?
Let’s examine this from both a legal and a human resources perspective:
From a Legal Perspective
Brian Klein, Partner at Weinstein and Klein, an NJ-based employment law firm, provides the legal perspective – One of the first things you learn about in law school is negligence and the elements that comprise a claim for negligence. Generally speaking, negligence is when someone acts carelessly or fails to act when they should, leading to harm or damage to another person or their property. It usually means the person didn’t take the necessary precautions or consider the consequences of their actions, which is expected of a reasonable person in a similar situation. The elements for a negligence cause of action tend to be:
- Duty: The defendant (person being sued) had a responsibility to act carefully and reasonably towards the plaintiff (person suing).
- Breach: The defendant failed to meet that responsibility by acting carelessly or not acting when they should have.
- Causation: The defendant’s actions or inactions directly caused the plaintiff’s harm or damage.
- Damages: The plaintiff suffered actual harm or loss, such as physical injury or financial loss, due to the defendant’s negligence.
While I understand the above case concerns workers’ compensation, my mind immediately went to a possible erosion of negligence claims in the event being shot by a six-year-old is now accepted as just a part of the job. In a typical case involving harm – say, a workplace violence incident where some part of the claim is not blocked by workers’ compensation laws (employees are typically precluded from bringing negligence claims against their employers due to the workers’ compensation laws) – there are some fairly common questions you’d ask to determine whether someone was negligent:
- Was there proper security or supervision?
- Was there any prior notice or other information that would indicate the possibility of harm? Any prior incidents of violence, for example?
- What are the written policies in place governing the workplace?
So much of a negligence analysis is based on something referred to as the reasonable person standard – which is pretty much what you would think it is: it refers to the behavior of a hypothetical, “reasonable person”, who is considered to be a careful, prudent, and responsible individual. However, the further those goalposts move with what is otherwise considered “reasonable” makes me wonder what the impact may be on negligence claims.
Now, you may be saying to yourself, who cares about negligence claims – won’t this just hurt those greedy personal injury attorneys? I for one think the negligence standard is a good thing, largely thanks to accountability and the fact that it helps keep people safer. If we start to chip away at what is otherwise reasonable and begin to accept more and more dangerous conduct as “normal”, then I fear that workers’ compensation claims won’t be the only claims that will become more difficult to bring.
From an HR Perspective
Kate Conroy, Senior Consultant at Red Clover, provides the Human Resources perspective – I believe the most dramatic implication would be on the landscape of Workers’ Compensation. The cost of Workers’ Compensation insurance varies by the “risk” level of a role. Jobs, where you are unlikely to be hurt at work, cost less to insure than those that carry a greater risk. The classification system for Workers’ Compensation varies from state to state but follows the same basic principle. Currently, educators are most likely classified as “clerical workers” or another low-risk classification.
However, if the school district presents an argument that Zwerner’s injuries should be covered by Workers’ Compensation, with the premise that getting shot is a part of the risk of being a teacher, the game changes. The risk profile of educators increases exponentially, as well as the cost of workers’ compensation insurance. This has a direct impact on the budget. The financial burden of public schools may be shifted onto the taxpayers. Private schools may raise tuition or be forced to close their doors.
Additionally, there is potential for an adverse impact on the talent pool in the education industry. This won’t seem as dramatic, because it is already a sparse pool. Any increase in the risk of physical harm makes a job less desirable. Pay for educators is notoriously low and the risk of school shootings is increasingly apparent. However, I believe formalizing this risk could further impact the talent pool. Schools will have to combat this with some combination of increasing safety protocols, increasing compensation for teachers, or potentially increasing classroom sizes and lowering the quality of education that children receive.
I can’t envision this hypothetical situation happening and not resulting in a huge moral blow to teachers and educators nationally. Across industries, this raises the question of what is an employer’s responsibility to ensure a reasonably safe workplace. Where is the line for an employer to be considered negligent in responding to complaints about harassment or threats?
If a precedent is set that getting shot at work is a normal risk of a teacher’s job and the employer is not responsible for negligence then workers in education and potentially other industries lose ground on negligence claims, the cost of workers’ compensation will rise and the talent market will be spun into yet another tailspin.
Photo Credit: Ketut Subiyanto: https://www.pexels.com/photo/planner-and-pens-on-table-with-laptop-4559555/