Gallara v. Koskovich

• Decision Date: 15 April 2003
• Citation: 836 A.2d 840,364 N.J. Super. 418
• Parties: Angelo GALLARA, Administrator and General Administrator of the Estate of Giorgio Gallara, deceased, Plaintiff, v. Thomas KOSKOVICH, Jayson Vreeland, Michael Conklin, Adventure Sport, Inc., T & R Alarm System, Inc., Guy Edsall, Jason Kelly and Monitol, Inc. Defendants. Joseph and Loretta Giordano, As Administrators ad Prosequendum for the heirs-at-law of Jeremy Giordano, deceased, Plaintiffs, v. Thomas Koskovich, Jayson Vreeland, Michael Conklin, Adventure Sport, Inc., T & R Alarm System, Inc., Guy Edsall, Jason Kelly and Monitol, Inc. Defendants.
• Court: New Jersey Superior Court

836 A.2d 840

364 N.J. Super. 418

Angelo GALLARA, Administrator and General Administrator of the Estate of Giorgio Gallara, deceased, Plaintiff, v. Thomas KOSKOVICH, Jayson Vreeland, Michael Conklin, Adventure Sport, Inc., T & R Alarm System, Inc., Guy Edsall, Jason Kelly and Monitol, Inc. Defendants.

Joseph and Loretta Giordano, As Administrators ad Prosequendum for the heirs-at-law of Jeremy Giordano, deceased, Plaintiffs, v. Thomas Koskovich, Jayson Vreeland, Michael Conklin, Adventure Sport, Inc., T & R Alarm System, Inc., Guy Edsall, Jason Kelly and Monitol, Inc. Defendants.

Superior Court of New Jersey, Law Division.

Decided April 15, 2003.

Ann M. Pompelio for plaintiff Gallara (Law Office of Ann M. Pompelio).

Christine G. Hurst for plaintiff Giordano (Fischbein, Badillo, Wagner, Harding).

David C. Bendush for defendant Adventure Sport, Inc. (Law Offices of Lane M. Ferdinand, P.C.).

Frank N. Yurasko, Somerville, for defendant T & R Alarm System, Inc. (Law Offices of Frank N. Yurasko).

Frank P. Addas, Jersey City, for defendant Monital, Inc. (Addas, Berlin, Kaplan, Dembling, Burke & Potenza, P.C.).

William F. Fitzgibbons, Franklin, for defendant Jason Kelly (Fitzgibbons and Goovaerts).

GRAVES, J.S.C.

On April 8, 1997, defendant Thomas Koskovich (Koskovich) and an accomplice broke into Adventure Sport, Inc. (Adventure Sport), a sporting goods store licensed to sell firearms, located in Franklin Borough, Sussex County, New Jersey, and stole three handguns. Eleven days later, on April 19, 1997, defendants Koskovich and Jayson Vreeland (Vreeland) utilized two of the stolen handguns to murder Giorgio Gallara and Jeremy Giordano. Koskovich and Vreeland lured the victims to a remote location in Franklin Borough by telephoning the pizzeria owned by Giorgio Gallara and placing an order for a delivery. Giorgio Gallara and Jeremy Giordano were ambushed and shot to death while attempting to make the delivery.

A jury found Koskovich guilty of burglary and theft of firearms from Adventure Sport. He was also found guilty and sentenced for the murders of Giorgio Gallara and Jeremy Giordano. Similarly, defendant Vreeland was convicted and sentenced for the murder of Giorgio Gallara and the aggravated manslaughter of Jeremy Giordano. The families of the victims initiated two separate wrongful death actions that have been consolidated for trial.

Plaintiffs contend that Adventure Sport negligently failed to exercise reasonable care to prevent the theft and subsequent misuse of its handguns and that such negligence substantially contributed to the wrongful deaths. Adventure Sport now seeks summary judgment claiming that "gun retailers do not owe a duty to murder victims to prevent the theft and subsequent use of a gun in murder." Alternatively, Adventure Sport argues that any negligence on its part cannot be a proximate cause of the ultimate harm because the tragic deaths of the victims resulted solely from the unforeseeable, superseding criminal conduct of Koskovich and Vreeland.

For the reasons stated herein, the law supports the imposition of the duty sought by plaintiffs. A commercial seller of firearms, such as Adventure Sport, is legally obligated to take such measures as are reasonably necessary to protect and safeguard its firearms from theft and subsequent criminal misuse. Based on the facts and circumstances present in this case, a reasonable jury could conclude that Adventure Sport's failure to adequately secure and safeguard its handguns was a proximate cause of the wrongful deaths. Accordingly, Adventure Sport's summary judgment application is denied. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995).

The evidence must be considered in a light most favorable to the non-moving parties, in this case the plaintiffs. R. 4:46-2; Brill, supra, 142 N.J. at 523, 666 A.2d 146. For the most part, the critical facts are not disputed. When Koskovich was apprehended, he gave a taped statement to the police admitting that two of the handguns he stole from Adventure Sport were used to kill Giorgio Gallara and Jeremy Giordano. In his statement, Koskovich acknowledged that he gained entry to Adventure Sport, after business hours, by shattering the front window of the store with a baseball bat. He then jumped through the window, smashed a glass firearms display case with his bat, and grabbed three handguns. When asked if he heard any alarms go off during the commission of the burglary and theft, Koskovich answered: "There was an alarm going off inside but it was real silent. It was a silent alarm almost. It was just like uuummm. Uuuummmm.... Quiet real quiet." After seizing the three handguns, Koskovich exited through the broken front window and escaped. A few days later, he drove to Jersey City where one of the stolen guns was traded to an unidentified stranger in return for drugs. Koskovich retained the two remaining handguns, a.22 caliber semi-automatic pistol and a .45 caliber revolver.

Koskovich had .22 caliber bullets at his house and he obtained ammunition for the revolver from a friend. Within a few days of the burglary and theft, Koskovich gave the .22 caliber pistol to Vreeland. Koskovich's statement includes the following:

Q. Did you ever take the guns and practice with them?

A. Yes we did. Ah we went to Vernon, me and Jay Vreeland and we jumped out in a couple of fields and just took a couple of practice shots just to know what the kick was like `cause I never shot a handgun before. Especially a .45.

* * *

Q. Did Jay shoot the .22?

A. Jay, yes. Jay shot the .22. He jumped out of the car and he took a couple of shots in the field.

Q. Just into the ground?

A. We shot at trees. We shot a deer. Whatever was around. It was nighttime.

* * *

Q. How long had you and Jay been talking about possibly doing this?

A. Not very long at all actually. It was only like a week or two ... after we got the guns we talked about it.

Q. And .. and what were you talking about? I mean.

A. We .. I don't know, we were just talking about going nuts `cause when .. when you get a gun you go crazy.

Q. Feel powerful?

A. Yeah.

* * *

Q. So then you came up with this idea after you stole the guns?

A. Yeah. I figured a .45, you know, wooo ... that's a powerful gun. I'm gonna' keep this one.

At the time of the burglary and theft, Adventure Sport was a retail sporting goods store licensed by the State of New Jersey to engage in the sale of firearms and ammunition to the general public. The Legislature has authorized the Superintendent of State Police to promulgate appropriate security requirements for commercial sellers of firearms to ensure that their weapons are secure from theft and subsequent misuse. N.J.S.A. 2C:58-2 provides in pertinent part:

No retail dealer of firearms ... shall sell or expose for sale, or possess with the intent of selling, any firearm unless licensed to do so as hereinafter provided. The superintendent [of State Police] shall prescribe standards and qualifications for retail dealers of firearms and their employees for the protection of the public safety, health and welfare.

Prior to maintaining an inventory of firearms, Adventure Sport was required to submit a security system plan to the Superintendent of State Police (Superintendent) for approval. N.J.A.C. 13:54-6.2. The purpose of a security plan is to safeguard firearms and ammunition located on the business premises from theft. Failure to comply with any security standards "may result in the revocation of the license" of the dealer. N.J.A.C. 13:54-6.2(g). The license must be renewed every three years, N.J.A.C. 13:54-3.8, and retail dealers applying for license renewal must meet the standards and qualifications of the Superintendent. N.J.A.C. 13:54-3.10.

Commercial sellers of guns must install an alarm system, or other system acceptable to the Superintendent, to protect firearms and ammunition from theft. N.J.A.C. 13:54-6.3. In addition, N.J.A.C. 13:54-6.5 requires each retail dealer to provide "internal security methods for the safeguarding of firearms and ammunition during nonbusiness hours." A dealer is allowed to select the security methods most compatible with its business, subject to the approval of the Superintendent.

The Administrative Code provides gun dealers with a list of approved security alarm systems which includes "[a]n alarm system designated to activate a bell, gong, horn or siren located on the outside of the business premises which is audible for a minimum distance of 500 feet." N.J.A.C. 13:54-6.3. It is clear from the testimony of Keith Hughes, the owner and operator of Adventure Sport, that he had an audible security alarm system installed. At his deposition, Mr. Hughes provided the following testimony:

Q. What was your understanding what you had to have when they came to inspect?

A. Audible.

Q. Let's stop there for a moment. When you say audible, what do you mean?

A. Siren.

Q. And did you have an understanding of where the siren was to be located?

A. Both internal and external.

Q. Was there any kind of a standard that you understood that the siren had to maintain? When I say that, in terms of decibels?

A. No, they don't give that.

Q. What was your understanding of the necessity for the siren?

A. Obvious that if you sustain a robbery, it will be audible. If there is any law enforcement nearby, that they can pickup on the audible signal and respond.

Q. So that it wouldn't be just a siren to be heard inside the premises. Is that correct?

A. That's correct.

Q. It's to be heard at a distance away so that if a law enforcement officer is nearby or anybody, they can move forward to try to stop this?

A. That's correct.

* * *

Q. Was the actual alarm different though in terms of—I will use the word audibility for lack of a better word?

A. The sound of the two?

Q. Yes, how loud it is.

A. I would say they're about equal, interior and exterior. They're very, very, very loud.

Q. And you know that because

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