On March 16, 2020, the Georgia Court of Appeals entered a ruling in the case of Star Residential, LLC vs. Hernandez for plaintiffs who bring claims under the Georgia Street Gang Terrorism and Prevention Act.
The Georgia Street Gang Terrorism and Prevention Act (hereinafter known as "GSGTPA"), was enacted in 2010 and states that if a property is used for gang activity, then it can qualify as a public nuisance. Any person who is injured by gang activity at said property can then have a cause of action for three times the actual damages sustained (treble damages) and, where appropriate, punitive damages.
In Hernandez, Plaintiff Manuel Hernandez sued Defendants Star Residential, LLC and Terraces at Brookhaven, LLC for injuries he sustained in a shooting at his apartment complex.
Hernandez's complaint alleges that he was a tenant in an apartment complex owned by Terraces at Brookhaven, LLC, and operated by Star Residential, LLC. In 2017, when Hernandez approached the doorway to his apartment, he was shot from behind in an unprovoked attack and robbery involving two shooters and a getaway driver. Hernandez survived the attack but was paralyzed from the waist down.
Hernandez later brought claims of negligent security/premises liability and nuisance, and later amended his complaint to include a nuisance claim under the GSGTPA.
The Defendants brought a motion to dismiss Hernandez's nuisance claim under the GSGTPA. Specifically, the Defendants argued that the language of the GSGTPA does not apply to the claim against them because they merely owned and operated the property, and Hernandez did not allege that the Defendants were involved in the shooting. The trial court denied the Defendants motion to dismiss, and Defendants appealed.
The Court of appeals affirmed the trial court's ruling, reasoning as follows:
Hernandez's nuisance count relies on O.C.G.A. § 16-15-7, which provides:
- Any real property which is erected, established, maintained, owned, leased, or used by any criminal street gang for the purpose of conducting criminal gang activity shall constitute a public nuisance and may be abated as provided by Title 41, relating to nuisances.
- Any person who is injured by reason of criminal gang activity shall have a cause of action for three times the actual damages sustained and, where appropriate, punitive damages...All averments of a cause of action under this subsection shall be stated with particularity. No judgment shall be awarded unless the finder of fact determines that the action is consistent with the intent of the General Assembly as set forth in Code Section 16-15-2.
O.C.G.A. § 16-15-2 provides:
- The General Assembly finds and declares that it is the right of every person to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals.
- The General Assembly, however, further finds that the State of Georgia is in a state of crisis which has been caused by violent criminal street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected.
- The General Assembly finds that there are criminal street gangs operating in Georgia and that the number of gang related murders is increasing. It is the intent of the General Assembly in enacting this chapter to seek the eradication of criminal activity by criminal street gangs by focusing upon criminal gang activity and upon the organized nature of criminal street gangs which together are the chief source of terror created by criminal street gangs.
- The General Assembly further finds that an effective means of punishing and deterring the criminal activities of criminal street gangs is through forfeiture of the profits, proceeds, and instrumentalities acquired, accumulated, or used by criminal street gangs.
The Court of Appeals held that O.C.G.A. § 16-15-7(c) is explicit that it is for the factfinder to determine whether the action is consistent with the legislative intent expressed in O.C.G.A. § 16-15-2. Thus, whether an action is consistent with the intent set forth in O.C.G.A. § 16-15-2 is not a threshold issue for courts to resolve, particularly at the motion to dismiss stage.
The facts alleged in Hernandez's complaint state that: criminal activity and numerous shootings were the result of gang activity at his apartment complex; his apartment complex was used by criminal street gangs for the purpose of conducting gang activity; lack of adequate security provided by the Defendants "enabled criminal street gangs to overtake the property to the point that residents were exposed to living in an environment that was equivalent to a 'war zone' "; and as a proximate result of the dangerous conditions maintained by the Defendants at his apartment complex, Hernandez was injured by criminal street gang activity.
Accordingly, based on the broad definition of criminal gang activity, the role of the factfinder in determining whether an action is consistent with the intent of the GSGTPA, the Georgia Court of Appeals affirmed the trial court's denial of the Defendants' motion to dismiss Hernandez's claim under the GSGTPA.
To summarize the GSGTPA and the Court of Appeals' ruling, if an apartment complex is used for gang activity, then it can qualify as a public nuisance under the GSGTPA. Any person who is injured by gang activity at the apartment complex can then have a cause of action for three times the actual damages sustained and, where appropriate, punitive damages.
To obtain these damages, however, the finder of fact must determine that the action is consistent with the intent of the General Assembly as set forth in O.C.G.A. § 16-15-2. Because the GSGTPA states that the finder of fact must determine whether the action is consistent with the intent of the General Assembly as set forth in O.C.G.A. § 16-15-2, then this issue will be difficult to dispose of on summary judgment.
With this favorable ruling for plaintiffs, we will likely see more types of these claims due to the difficulty in disposing of claims of this kind before trial.
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