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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 114029
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I have a question about general liability. If I was to modify

Customer Question

I have a question about general liability. If I was to modify the look of a fire extinguisher (hiding the original product labels) for sale purposes. Does that make my company liable in case of an issue?
Submitted: 10 months ago.
Category: Legal
Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
What do you mean by modifying the look?
Customer: replied 10 months ago.
The fire extinguisher is made in Belgium and fully CE certified. It's a perfectly well manufactureredproduct. In the US, no federal certifications are required (info coming from the Consumer Product Safety Commission). UL certifications is what is typically asked in the US when dealing with large organisations. Take a look at the product to really understand it: www.safe-t.eu. I have also added a file.
The fire extinguishers are fitted with a really cool sleeve, making an unpopular product popular. We want to sell them in the USA but wonder if by not being US certified, we face general liability issues in case of a problem? Typically, to be certified, you need to have labels on the product. This one would have instructions on the bottom of the extinguisher AND a disclaimer in the box that states: "this is for decoration only, do not substitute an official extinguisher with this fire extinguishing device but this product would NOT follow the US guidelines to qualify it as a fire extinguisher. The way they maneuvered around it in Europe (and they sold 100K units, although in countries where lawsuits are very infrequent) is to NOT call it a Fire Extinguisher but call it a "fire extinguishing device". In other words, we would not be selling a fire extinguisher but a decorative object that has fire extinguishing capabilities. Does that have legal ground?
I am worried that if I do sell this product in the US and a general liability claim arise, my company could be sued for selling a fire extinguisher that is not US certified. How do I protect my US company from a US law suit for a belgian product, uncertified in a country that requires none but typically has one?
We can discuss it by phone if you prefer:(###) ###-####
Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your reply.
In cases of resale of an item, even if all you make is cosmetic changes, for product liability purposes the seller and manufacturer are jointly and severally liable for any harm caused by any defects to the consumer. As between the seller and manufacturer, if the seller is found liable for any product liability defects, the seller has a claim against the manufacturer for product liability.
So to answer your question, if you are selling any product and that product is defective and causes harm, even with warnings, then legally you are liable to the consumer if the manufacturer does not pay. In the US calling it a "fire extinguishing device" or anything else that represents to have fire extinguishing capabilities does not save you from liability (it is still joint and several liability, meaning if the manufacturer does not pay for damages you have to pay and then pursue the manufacturer).
The only way to protect yourself is to carry suitable insurance in the event that you are sued for product liability. Having an adequate warning that the device is not to be used as a fire extinguisher or safety device is going to protect you as much as you can possibly be protected for damages occurring from use of the device, but in the event of a defect it does not really protect you from that and there is no real way to protect yourself from that liability other than insurance (for example they use it and it blows up on them, you can be liable despite the warning).
Customer: replied 10 months ago.
Thank you. Your angle is "defective product". I agree. The question will be to an insurance company and whether they would insure an un-certified product.
What about a mishandling of a fire extinguisher that would have been allegedly prevented by correct UL certified markings? This was my first worry.
Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your reply.
If it is sold as a fire extinguisher and not a decorative product, you cannot sell it without the UL certification. You can sell it for only decorative purposes and mark it that it cannot be used and is not intended to be used as a fire safety or extinguishing device.
Customer: replied 10 months ago.
UL certification is voluntary, not mandatory, according to the Consumer Product Safety Commission. This should qualify the product to be sold without certification, correct?
Wherever this is true or not,the question is: the product does not have UL certified markings (although we are in discussion with UL to at least have them provide us with the same certificate of conformity Europe has already received certifying the device despite the change in marking). Is it therefore too much liability exposure for a US company to sell these items, knowing that in case of a claim, we know that the labels are not conforming to US standards. Even if we can get insured, is it just too risky?
Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your reply.
Yes, but it opens you to more liability. If you want to sell it as a decorative non certified item, you can do so with your warning as well. There is liability exposure of selling a non-certified item as a fire extinguisher, but selling it clearly marked as decorative and not for use as a fire safety device will reduce your liability about as low as possible.
Customer: replied 10 months ago.
Last question and I thank you so much for your advises: would you do it?
Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your reply.
Depending on the amount of profits I would be looking at. If there are reasonable profits even with having product liability insurance, then it is worth assuming the risk.
Customer: replied 10 months ago.
huge profits... Now you are no longer making it easy :)
Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your reply.
It is all about you doing a risk analysis. If the risk of any damage from defects is low and profits are high, then going for it makes sense. If risk of harm from defects is high, then you need to reexamine that against the rewards to see if it would still be economically profitable and if it is then go for it.

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