New Jersey Superior Court Holds Commercial Seller Of Firearms Has Duty To Protect Handguns From Theft And Subsequent Criminal Use
January, 2004
In a case of first impression, the New Jersey Superior Court holds that a commercial seller of firearms can be liable when a firearm is stolen and subsequently used for criminal purposes. Gallara v. Koskovich, 836 A.2d 840 (N.J. Super).
Facts
Defendant Adventure Sport, Inc. (“Adventure Sport”) is a sporting goods store licensed to sell firearms. Defendant Thomas Koskovich (“Koskovich”) and an accomplice broke into Adventure Sport after hours and stole three handguns. Almost two weeks later, Koskovich and defendant Jayson Vreeland (“Vreeland”) murdered Giorgio Gallara (“Gallara”) and Jeremy Giordano (“Giordano”). Koskovich and Vreeland were found guilty and sentenced for the murders of Gallara and Giordano.
The families of Gallara and Giordano filed separate wrongful death actions, which were later consolidated, against Koskovich, Vreeland and Adventure Sport. As to Adventure Sport, plaintiffs alleged that it failed to exercise reasonable care to prevent the theft and misuse of the handguns and that its negligence substantially contributed to the deaths of Gallara and Giordano.
Adventure Sport moved for summary judgment arguing that gun sellers “do not owe a duty to murder victims to prevent the theft and subsequent use of a gun in murder.” In the alternative, Adventure Sport argued that deaths of plaintiffs’ decedents were the result of the unforeseeable, superseding criminal conduct of Koskovich and Vreeland, and therefore any negligence on its part was not the proximate cause of the deaths. Noting that the Superintendent of State Police had approved its security system and that the store passed all yearly police inspections and that there was no history of criminal activity at the store, Adventure Sport asserted that the security measures in place on the date the guns were stolen were adequate and that it was not liable for the deaths of Gallara and Giordano.
The Superior Court denied Adventure Sport’s application for summary judgment.
Analysis
The Superior Court concluded that the duty which plaintiffs sought to impose on Adventure Sport is supported by the law. In so finding, the court considered public policy factors, such as the high number of handgun-related deaths each year, as well as the fact that Adventure Sport knew of both the strict legal requirements imposed upon gun dealers and the dangers presented should their guns end up in the hands of criminals or other unauthorized users. The State of New Jersey imposes security requirements on commercial sellers of firearms in order to prevent their theft and misuse, including the submission to the Superintendent of State Police a security system plan, the installation of an alarm system to prevent the theft of firearms, and “internal security methods for the safeguarding of firearms and ammunition during non-business hours.” In addition, such commercial sellers are required to have an audible alarm which can be heard from 500 feet away.
Although Adventure Sport had an audible security alarm system installed, the testimony of one of the responding police officers as well as a statement given by Koskovich indicated that the audible alarm system was not functioning properly at the time of the theft. In addition, the plaintiffs claimed that Adventure Sport failed to implement required internal security measures, such as keeping the firearms in a safe or vault or securing the firearms in a locked cabinet or other storage space.
In opposition to Adventure Sport’s application, plaintiffs submitted the report of their proposed expert witness who cited the deficiencies in the store’s security system and concluded that if Adventure Sport had “basic physical and electronic security controls, commonplace in the gun dealer industry” which were operational, Koskovich would not have been able to steal the firearms used in the murder.
In determining whether Adventure Sport breached any duty to plaintiffs, the court noted that Adventure Sport was subject to a strict regulatory scheme in order to obtain and maintain its license to sell firearms, and that it was reasonable to conclude that the store was well aware of the “grave risk” presented should criminals or other unauthorized users gain access to its handguns. The court also noted that “commercial sellers of firearms are subjected to strict licensing and regulation requirements for a reason” -- first, stolen guns can be easily converted to cash or drugs, and second, because stolen guns go directly into the “wrong hands”, that those guns will be used for criminal purposes is “readily foreseeable.”
The court found that Adventure Sport had “sufficient control, opportunity, and ability to exercise due care to safeguard its firearms” but failed to do so, and concluded that “a licensed seller of firearms should not be immune from liability if it engages in conduct that contributes to gun violence.” In concluding that a duty existed, and that imposition of the duty of reasonable care was not unrealistic, unfair or contrary to public policy, the court noted that the United States Congress has determined that “crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem” and that New Jersey has a strong policy to regulate firearms in order to minimize the risks of gun violence.
Finally, the court found that the issue of proximate cause and whether it was foreseeable that Koskovich would use the stolen gun to murder plaintiffs’ decedents, is a question of fact for the jury.
Learning Point:
A commercial seller of firearms must take precautions to prevent the theft of firearms with both a functioning alarm system and the use of vaults or other means of securing firearms inside the property to prevent their removal in the event of a break-in. Should the firearms end up in the hands of someone who misuses them, the commercial seller faces liability for any resulting injury or damage.
Editor’s Note: We will monitor and report on any future appeal in Gallara or other cases analyzing this trial court decision. ¨
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