1 

NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY

 

EDWARD KOHLER and RACHEL 

KOHLER, 

Plaintiffs, 

v. 

VANBRO CORP., JOHN DOES 1-5, ABC 

CORPORATIONS 1-5 

Defendants. 

Civil Action No. 3:11-cv-02956-PGS 

MEMORANDUM AND ORDER 

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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