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Liability for non UL listed products / Sign up for Group and Private Meetings in Las Vegas
March 19, 2024
Liability for non UL listed products
          It has come to my attention that a lot of the camera manufactures have their products labeled for NDAA or TAA but are not UL listed including their servers. The ones that are UL listed are significantly higher cost than the ones not listed. This makes it hard to compete with companies submitting quotes with the cheapest price not caring about the UL label.  
          Since I have a Master MD electrician on staff and pull electric permits when needed we are getting asked from the inspectors to provide the UL listings for the items we are installing.  
          My question is, what’s the liability for the installing Dealer that installs non-UL listed equipment from the manufactures who don’t see the need for it to be UL? 
          Should the customer sign something noting they know the items do not have a UL label?
          The common answer from the manufactures is the power supply is UL labeled so you’re good.  
Chris Serbeck, President
Middle River, Md
          You have three issues:
  *  code or permit approved plans requiring UL Listed components
  *  contract specs requiring UL Listed equipment
  *  using equipment you know to be inferior or inadequate, departing from custom and practice
          I need to be a bit cautious with this one because I am reminded of the lawyer joke, “I treat every Court Order as a mere suggestion”. 
          UL is but one industry NRTL; there are others and I don’t know if they all agree.  A UL Listed product or service means it has the imprimatur of UL; UL’s approval; Sometimes a UL requirement deals with a service you offer that is also UL Listed [like central station services].  A UL Listed product presumably has met certain standards after testing and evaluation. 
          While I’m not sure, I suppose other NRTL, such as ETL for example, have their own approved products which may overlap with UL approval.
          Certainly when code or your permit approved by the AHJ requires a UL component you are required to comply, but failure to comply will not, generally, create absolute liability for loss.  More on that below.
          Same with a contract requirement specifying certain equipment, perhaps a representation or warranty by you that certain equipment will be or was installed,, when it wasn’t, and you know or knew it – use adding to the improper conduct.  But this too may not create lability for loss, at least not a tort liability.  If would create a contract liability.
          Does using non UL Listed equipment expose you to liability if your customer suffers a loss that is attributed to equipment used?  Failure to have the UL Listing is not in and of itself a basis for liability in tort [negligence].  If the equipment you used works as well, or you believe it works as well and you have reason to reach that conclusion, then there should be no liability if that equipment fails.  But, the analysis probably doeesn't end there.  The burden may quickly shift so that you have to prove you didn’t use inferior equipment which resulted in the failure and loss.  Normally a Plaintiff has to prove you did something wrong.  Using the wrong equipment isn’t enough to prove negligence, but it may be enough to cause a trier of fact [judge or jury] to suspect you did something wrong; a suspicion that requires you address it rather than take your chances that it won’t unduly influence someone to think you actually did something wrong.  The way it plays out is Plaintiff’s lawyer ripping you a new one while on the stand about using a component that isn’t UL Listed [not sure what component would matter] instead of a UL Listed product, even one called for by plans or code or contract, You’ll be on the defense at that point, rather than being able to say, “hey, I used the exact component called for by code, plan or contract, and don’t know why it failed or it's not my fault”.  You will be hammered about not complying with what might simply be called custom and practice, which in this case translates to using a UL Listed and tested component recommended for the application.
          But to sound a bit more lawyerly, failing to use a UL Listed product, even when called for, should not result in absolute liability.  Res ipsa loquitur (Latin: "the thing speaks for itself") is a doctrine in common law and Roman-Dutch law jurisdictions under which a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved in the context of tort litigation.)  Failing to use a specific product, UL Listed or not, should not cause you to be faced with a  res ipsa loquitur determination, which would really put the burden on you to explain why you aren't responsible.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
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