Litigators have recently received clarity on a question that has divided trial courts throughout Georgia: Can claims against landlords and property owners proceed under Georgia’s anti-gang statute? The Georgia Court of Appeals answered this question in the affirmative by upholding a trial court’s decision to allow claims to proceed against a landlord under Georgia’s anti-gang statute, despite the landlord having no involvement in the underlying gang activity.
In Star Residential LLC v. Hernandez, No. A19A2267, 2020 Ga. App. LEXIS 208 (Ct. App. Mar. 16, 2020), the plaintiff, Manuel Hernandez, alleged he was shot from behind in an attack and robbery in his apartment complex owned by the defendants, Star Residential, LLC; and Terraces at Brookhaven, LLC. The plaintiff brought several claims against the defendants, including a nuisance claim under the Georgia Street Gang Terrorism and Prevention Act (GSGTPA), O.C.G.A. § 16-15-1 et seq.
Interpreting the GSGTPA
The Georgia General Assembly adopted the GSGTPA in the 1990s. According to the legislative intent drafted into the act, the General Assembly found Georgia was “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,” and by enacting the act, its intent was “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.” (see O.C.G.A. § 16-15-2.) While the act criminalizes certain gang activity, it also provides for civil remedies for those who are injured by reason of gang activity. The plaintiff’s claim was based on this civil liability provision.
The defendants moved to dismiss the plaintiff’s GSGTPA-based claims, arguing the language of the act does not apply to the claim against them because they merely owned and operated the property; they were not involved in the shooting. The trial court denied the defendants’ motion based on the plain language of the act authorizing all legal remedies for a public nuisance and not expressly limiting an action for treble damages only to gangs or their members.
On interlocutory review, the Georgia Court of Appeals interpreted the plain and unambiguous language of the GSGTPA to conclude that whether a claim against a landlord for treble damages in gang-related premises liability claims is proper is a matter for jury determination. Under the statute at issue, O.C.G.A. § 16-15-7,
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; provided, however, that no cause of action shall arise under this subsection as a result of an otherwise legitimate commercial transaction between parties to a contract or agreement for the sale of lawful goods or property or the sale of securities regulated by Chapter 5 of Title 10 or by the federal Securities and Exchange Commission. Such person shall also recover attorney’s fees in the trial and appellate court and costs of investigation and litigation reasonably incurred. 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.
Employing statutory construction, the Court of Appeals reasoned the plain language of the statute allows for a cause of action for treble damages to persons injured by reason of criminal gang activity if the fact finder determines the action is consistent with the codified legislative intent. Although the statute is silent as to the intended defendant of these types of actions, the court concluded that because the plaintiff’s allegations of a violent injury fall within the type of conduct outlined in the statute, it was for the fact finder, rather than the court, to determine whether the action against the landlords was consistent with the legislative intent.
Hamstrung by Statute
The opinion appears to allow cases alleging violations of GSGTPA to go to juries around the state, even if the landlord neither directly participated in the gang activity nor had knowledge of the activity. The concurrence of the opinion noted this may be an undesirable, perhaps even absurd, result, but the court seemed to be hamstrung due to the wording of the statute. The concurrence expressed concern that the unintended consequences of the wording of the statute allow a jury to engage in statutory interpretation to determine whether a property owner or landlord is a proper defendant, which is a role typically reserved to the court.
Moreover, the concurrence noted that allowing the jury to engage in this type of interpretation essentially eliminates the summary-judgment stage for these types of litigations. However, it nevertheless concluded that the only remedy for this incongruous result was for the legislature to amend the statute.
The court declined to address an argument advanced by the Georgia Defense Lawyers Association in its amicus curiae brief because it was not raised below to the trial court, and the court determined that the argument involved a constitutional question over which it did not have jurisdiction.
This decision will no doubt be unwelcome news to many in the residential rental business. Property owners and landlords can expect that any plaintiff alleging negligent security will likely also bring claims under the GSGTPA if there is any indication gang activity was involved in the injury. Because the language of the act places interpretation in the hands of the jury, defendants will be forced to litigate the complicated issue of whether their conduct was intended to be punished under the GSGTPA.
Little guidance is provided by the statute as to who is a proper defendant and whether a landlord is included in the group of defendants whose conduct was intended to be punished by the civil remedy provided in the act. While there is a strong argument that the GSGTPA was not intended to penalize the conduct of landlords who did not have involvement or knowledge of gang-related activity, there is always the chance a jury could disagree. This is troublesome as it could result in inconsistent jury determinations and verdicts throughout the state.
Unless this case is taken up by the Supreme Court of Georgia, this will end years of litigation, and varying results, in trial courts around the state involving whether such claims against landlords could proceed. However, we have not yet begun to see how juries will respond to claims against landlords under the GSGTPA and whether landlords can expect to be subject to treble damages.