KOHLER et al v. VANBRO CORP. et al

Filing 22

MEMORANDUM AND ORDER that Defendant's motion for Summary Judgment is granted; that Plaintiff's motion to transfer is denied as moot; Defendants motion for attorneys' fees is denied as moot. Signed by Judge Peter G. Sheridan on 1/30/2013. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civil Action No. 3:11-cv-02956-PGS
EDWARD
KOHLER,

KOHLER

and

RACHEL
MEMORANDUM AND ORDER

Plaintiffs,
v.
VANBRO CORP., JOHN DOES 1-5, ABC
CORPORATIONS 1-5
Defendants.

SHERIDAN, U.S.D.J.

This action comes before the Court on two motions. First, on a motion to transfer venue
to the Eastern District of New York pursuant to 28 U.S.C. § 1404(a) by Plaintiffs Edward Kohler
and Rachel Kohler; and second on a motion for summary judgment by Defendant Vanbro Corp.
In addition, Defendant seeks reimbursement for costs, including attorneys’ fees, if the motion to
transfer is granted. For the reasons stated below, Defendant’s motion for summary judgment is
granted, and Plaintiffs’ motion to transfer and Defendant’s motion for costs are therefore denied
as moot.
I.
This case arises from a workplace accident involving Plaintiff Edward Kohler, a resident
of New Jersey, and Defendant Vanbro Corporation (“Vanbro”), a business located in Staten
Island, New York. On May 22, 2010, Plaintiff, an employee of Vanbro, was performing
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maintenance on a pugmill1 at Vanbro’s location when the machine was accidently powered on by
a co-employee.
Plaintiffs allege that no safety procedures were established in the workplace that would
have prevented such an accident from occurring. On or about May 23, 2011, Plaintiffs filed their
original complaint in this District, and thus far Plaintiffs and Defendant have engaged in limited
discovery and one deposition. On November 18, 2011 Defendant filed an answer to the
complaint. During the course of interrogatories Plaintiffs learned of additional defendants to be
named, and Plaintiffs commenced a parallel action in the Eastern District of New York, because
this Court may not have jurisdiction over some of the additional defendants.
On or about September 5, 2012, Plaintiffs filed a motion to transfer to the Eastern District
of New York, subject to 28 U.S.C §1404(a), to consolidate the cases. Thereafter, on or about
September 20, 2012, Defendant submitted a motion for summary judgment.
II
The issue is whether the court should grant summary judgment in favor of Defendant
Vanbro Corp. Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving
party demonstrates that there is no genuine issue of material fact and the evidence establishes the
moving party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for
the non-movant, and it is material if, under the substantive law, it would affect the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In considering a motion
for summary judgment, a district court may not make credibility determinations or engage in any
weighing of the evidence; instead, the non-moving party’s evidence ‘is to be believed and all
1

A pugmill is a large machine in which materials are simultaneously ground and mixed with a
liquid for the production of asphalt.
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justifiable inferences are to be drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241,
247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v.
Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary
judgment cannot rest on mere allegations and instead must present actual evidence that creates a
genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v.
Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations . . . and
pleadings are insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912
F.2d 654, 657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to “set
forth specific facts showing that there is a genuine issue for trial”). Moreover, only disputes over
facts that might affect the outcome of the lawsuit under governing law will preclude the entry of
summary judgment.

Anderson, 477 U.S. at 247-48. If a court determines, “after drawing all

inferences in favor of [the non-moving party], and making all credibility determinations in his
favor – that no reasonable jury could find for him, summary judgment is appropriate.” Alevras v.
Tacopina, 226 Fed. Appx. 222, 227 (3d Cir. 2007).
III
In determining whether summary judgment should be granted, courts look at whether
there are any material facts in dispute. In the case at bar, Plaintiffs claim summary judgment is
premature as they have not finished their fact investigation, and need additional time for expert
discovery. However, subsequent factual investigations or expert discovery will not produce any
material facts that will be sufficient to change the outcome of this case.

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The New York Workers’ Compensation Law states in part “liability of an employer …
shall be exclusive and in place of any other liability whatsoever.” N.Y. Workers’ Comp. § 11
(Consol. 2012). The New York Workers’ Compensation Law reflects a historic trade off,
providing almost certain compensation for injuries sustained in the workplace regardless of fault,
hence avoiding the long expensive and uncertain trial process, in exchange for the right to sue an
employer in tort. See Billy v. Consol. Mach. Tool Corp., 51 N.Y.2d 152, 159 (1980).
There is an exception to the exclusivity of the Workers’ Compensation Law "[w]here
injury is sustained to an employee due to an intentional tort perpetrated by the employer or at the
employer's direction . . . with the desire to bring about the consequences of the act. [However, a]
mere knowledge and appreciation of a risk is not the same as the intent to cause injury." Finch v.
Swingly, 42 A.D.2d 1035 (N.Y. App. Div 4th Dep’t 1973).
Plaintiffs claim that Defendant failed to implement certain safety procedures that would
have prevented this injury from occurring. In Plaintiffs view, the alleged failure to institute
safety procedures constituted an intentional injury negating the exclusivity of the Worker’s
Compensation Law. Plaintiffs claim, however, is without merit. In one similar case, the
Appellate Division of New York found that even where defendants had intentionally ignored
known hazards, it may have risen to the level of gross negligence or even recklessness but such
injury would still fall short of the “intentional injury” exception necessary to negate the
exclusivity of the Workers’ Compensation Law. Orzechowski v. Warner-Lambert Co., 92
A.D.2d 110, 113 (N.Y. App. Div. 2nd Dep’t 1983).

Generally, “mere knowledge and

appreciation of a risk is not the same as the intent to cause injury.” Finch v. Swingly, 42 A.D.2d
1035 (N.Y. App. Div 4th Dep’t 1973).

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Plaintiff’s allegations that proper safety procedures were not in place do not rise to the
level of intentional injury. Even if Defendant did have the knowledge that the lack of proper
lockout techniques could create an unsafe work environment, it would not amount to the level of
intentionally causing an injury to occur. That is, Defendant’s possible knowledge that a lack of
proper lockout techniques existed does not suffice to show an actual ‘intent to cause injury.’
Plaintiff’s injury occurred when a co-employee failed to recognize that Plaintiff had gone
into the machine to perform some maintenance, and he started up the pugmill. When the coemployee realized Plaintiff was in the machine, after he heard plaintiff screaming, the coemployee immediately shut down the pugmill, and went to help Plaintiff. The undisputed facts
show that Vanbro did not have intent to cause injury. As such the exclusivity of the Workers’
Compensation Law stands.
Therefore summary judgment is granted in favor of Defendant, and the motion to transfer
and for attorneys’ fees are denied as moot.

ORDER
IT IS on this 30th day of January, 2013;
ORDERED that Defendant’s motion for Summary Judgment is granted; and it is further
ORDERED that Plaintiff’s motion to transfer is denied as moot;
ORDERED Defendants motion for attorneys’ fees is denied as moot,

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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