HOUSTON – A federal court has rejected a construction company’s attempt to obtain summary judgment dismissal toward litigation brought by a man who claimed he was blinded by a light flash emanating from a welding torch while on the job.
James Fuchs Jr. first filed suit in the U.S. District Court for the Southern District of Texas on Oct. 27, 2021 versus Total Safety, U.S., Inc. and Turner Construction Company of Dallas, plus Amazon Web Services, Inc. and Amazon.com Services, LLC of Austin.
(Each of the defendants were later dismissed from the case except for Turner Construction Company.)
“The parties appear to agree that in February 2021, Fuchs was working at the Nashville Yards construction site as an employee or independent contractor of Nashville Machine Company. Turner Construction Company was the general contractor for the Nashville Yards projects, and Nashville Machine Company was a Turner sub-contractor. Fuchs alleges that he was blinded when a welding arc flash burned his eyes. Fuchs has not regained his sight. Before the incident, Fuchs could work without vision difficulties and without assistance; he cannot do that now,” U.S. District Court for the Southern District of Texas Judge Lee H. Rosenthal said.
“Fuchs alleges that he went up to the penthouse level of the building under construction at the direction of a Turner employee. A welder was working on the penthouse floor, without barricades, warning signs, or watch personnel to notify other workers to avoid the area where the welding was taking place. Fuchs testified that the person holding the welding torch was wearing regular clothes, without a vest, hard hat or other apparel that might have named that person’s employer. Fuchs asserts claims for negligence, vicarious liability and negligent training. He has non-suited his claims for gross negligence.”
Turner responded by alleging that on the date of the incident, no Turner employees or sub-contractors were scheduled to work on the penthouse level of the building where Fuchs was hurt.
Turner claimed that it “did not employ any welders on the project at all” and that welding was not necessary at that stage of the building construction. Turner alleged that it was not the only contractor onsite, but Turner “has not identified other contractors who might have been working on this project or on a nearby project at the same time.”
Amazon had stated that it contracted directly with Turner, and Fuchs alleged that Turner was the managing contractor for the property at that time.
“Turner asserts that the welder was not a Turner employee or sub-contractor, but acknowledges that information about the welder is scant. The welder’s identity is unknown. Turner asserts that on the date of the alleged incident, it did not employ any welders on the site and none of Turner’s sub-contractors were scheduled to perform any work at the penthouse level of the building. A Turner employee testified that other general contractors were working in the building area where Fuchs was injured around the time of the incident,” Rosenthal stated.
“Fuchs presents Amazon’s responses in discovery as evidence that Turner was the only general contractor working in the building, or at least the only contractor authorized to work in the building, creating an inference that all the workers in that building would be either employees or sub-contractors of Turner. Because ‘both parties have submitted evidence of contradictory facts,’ the court resolves the contradictions in favor of the non-movant, Fuchs.”
Rosenthal added that “because the welder is unidentified, there is no evidence as to the degree of control Turner might have exercised or retained over this particular welder…the record is both disputed and inadequate to determine the nature and extent of Turner’s control over the contractors and other workers on site, including control over the welder holding the torch that burned Fuchs.”
While Turner argued that it cannot be liable for Fuchs’s injuries, because it was not an owner or occupier of the penthouse floor where Fuchs was injured and so did not have the requisite control over the premises, Rosenthal explained that Amazon’s discovery responses show that Turner was the only general contractor authorized to work in the building on the date in question.
“Given the evidence as to Turner’s general control of the building construction site, and the absence of any carve-out in Turner’s contract with Amazon to exclude the penthouse floor, the court finds that there are factual disputes material to determining whether and to what extent Turner controlled work and personnel on the penthouse floor when Fuchs was injured,” Rosenthal said.
As far as cause, Texas law requires a plaintiff show that a defendant’s conduct was (1) the cause-in-fact and (2) the proximate cause of their injuries.
“Turner argues that the evidence fails to show that an electrical arc from a welding torch was either the cause in fact or a substantial factor in causing Fuchs’s injuries. Turner argues that Fuchs’s medical records contain no indication that his eye injury was caused by a welding arc flash. Turner argues that Fuchs’s blindness was caused, or contributed to by, other pre-existing health conditions, including diabetes. Fuchs responds that the slow-developing nature of his chronic illnesses makes it unlikely that they would cause a sudden blindness,” Rosenthal stated.
“Turner’s argument does not account for the probative nature of the timeline: Fuchs could see well enough to work and perform the activities of daily living until the welding torch arc hit him in the face, and he was unable to do so immediately afterward. The injury alleged is consistent with a welding arc flash or other sudden blinding event, and inconsistent with slow-progressing diabetes. Turner’s motion for summary judgment as to causation is denied. The motion for summary judgment is denied.”
The plaintiff is represented by Andrew Anh Dao and Kayvon Alihossini of Daly & Black, in Houston.
The defendant is represented by John Wesley Bridger and Kamilla Shlimak Vener of Wilson Elser Moskowitz Edelman & Dicker, also in Houston.
U.S. District Court for the Southern District of Texas case 4:23-cv-02031
281st Judicial District of Harris County, Texas case 21-70846
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com