Many fireworks injuries involve devices that were never supposed to be in the user's hands in the first place. Sometimes that is because the device is federally banned. More often it is because the device was bought legally in one state and brought into another state where consumer fireworks are restricted. The most common assumption after one of these injuries: there is no case because the firework was illegal. Most of the time, that is wrong.
Three Different Things "Illegal" Can Mean
The word "illegal" gets used loosely about fireworks. In a case it matters which kind of illegality applies, because each one has a different effect on liability.
- Federally banned devices. Certain devices — M-80s, cherry bombs, silver salutes, and most large reloadables — are prohibited from sale to consumers anywhere in the United States under 16 CFR Part 1500 and Part 1507. These are illegal everywhere.
- State-restricted consumer fireworks. Some states (Massachusetts, for example) ban almost all consumer fireworks. Others restrict aerial fireworks but permit ground devices. Others permit everything that is federally legal. A device legal in Indiana may be illegal in Illinois.
- Devices misclassified or mislabeled. A device sold to a consumer that is actually a professional-grade device, or a device packaged as a consumer firework but containing more pyrotechnic composition than 16 CFR 1507 allows, is "illegal" because it does not match its representation. The buyer thought they were buying a consumer firework. They were not.
Why Product Liability Still Reaches the Maker
Product liability law focuses on whether a product was defective and caused injury — not whether the sale or use was legal. A manufacturer that sells a defective device into a market knows perfectly well the device will end up in users' hands. Whether the device crossed a state line on the way is not a defense.
The rule is clearest with federally banned devices. A manufacturer that produces an M-class device or a large salute and routes it through a network of distributors who sell to U.S. consumers cannot turn around and say, "the user shouldn't have had it" when the device explodes prematurely. The manufacturer made a device that was illegal to sell in the first place, then sold it. The injury is the foreseeable consequence.
With state-restricted devices, the analysis is similar. The fireworks industry knows that devices sold legally in one state are routinely transported into states where they are banned. Many fireworks retailers actively cater to out-of-state buyers. A manufacturer or distributor that is on notice their product flows into restricted states cannot use that flow as a defense when the product injures someone.
Comparative Fault Is Not the Same as No Case
Where the user broke a state law to use the device, the user may bear some share of the legal responsibility for the injury — that is what comparative fault doctrines are for. Most states reduce a plaintiff's recovery in proportion to their share of the fault. A user who was 30% at fault for using an illegal device collects 70% of the verdict. Some states bar recovery entirely if the plaintiff was more than 50% at fault. A few states still apply contributory negligence rules that bar recovery if the plaintiff was at all at fault.
The key point: even in a strict comparative-fault state, the existence of comparative fault does not make the case go away. It changes the math. A serious injury case — an amputation, a permanent eye injury, a long-term disability — can still produce a meaningful recovery even after a comparative-fault reduction. A lawyer evaluating the case looks at both halves of the equation: the strength of the product defect (which goes against the manufacturer) and the share of user responsibility (which the manufacturer will try to expand).
When the Buyer Did Not Know the Device Was Illegal
A critical fact in these cases is whether the user knew the firework was illegal where they used it. A user who drove from Pennsylvania to Massachusetts with a trunk of consumer fireworks knew. A user who bought what was packaged as an ordinary cake at a roadside stand did not necessarily know the device exceeded federal explosive limits.
Where the buyer reasonably believed the device was a legal consumer firework and the device was actually an illegal misclassified one, comparative fault may not apply at all to the user. The fault sits with the manufacturer who built and labeled an illegal device, and with the seller who sold it without identifying it as illegal. Establishing what the buyer knew or reasonably should have known is fact-intensive and case-specific.
When the Bystander Was Not the User
Many fireworks injuries happen to bystanders — the spouse, the child, the friend standing nearby — not to the person who lit the device. A bystander who did not buy or use the firework usually has no comparative fault at all. Their case against the manufacturer, importer, distributor, and retailer can proceed essentially without reduction, even if the device was illegal and the user is also at fault.
For more on the underlying products liability theories that apply, see who is liable when a firework malfunctions. For the broader landscape of who can be held responsible, see who is liable.
Was the Firework Legal?
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Sources
- 16 CFR Part 1500 — Federal Hazardous Substances Act, including the list of banned fireworks devices. ecfr.gov/current/title-16/chapter-II/subchapter-C/part-1500
- 16 CFR Part 1507 — Federal regulations on consumer fireworks devices. ecfr.gov/current/title-16/chapter-II/subchapter-C/part-1507
- National Fire Protection Association — State-by-state fireworks legality summary. nfpa.org/education-and-research/research/research-and-statistical-reports/fireworks
- American Pyrotechnics Association — State law map and consumer firework restrictions. americanpyro.com/state-law-directory
- Restatement (Third) of Torts: Products Liability § 17 — effect of plaintiff's conduct on liability. ali.org/publications/show/torts-products-liability
- U.S. Consumer Product Safety Commission — Fireworks Annual Report. cpsc.gov/Safety-Education/Safety-Education-Centers/Fireworks