TREBLE DAMAGES ARE NOT AVAILABLE TO PLAINTIFFS IN PREMISES LIABILITY ACTIONS AGAINST PROPERTY OWNERS UNDER THE GEORGIA STREET GANG TERRORISM AND PREVENTION ACT

In Star Residential, LLC, v. Hernandez, Hernandez was shot in an unprovoked attack and robbery at his apartment complex. Hernandez sued the owners and managers of the property asserting claims of negligent security/premises liability; a nuisance claim under the Georgia Street Gang Terrorism and Prevention Act (“GSGTPA”); and negligence per se for local public nuisance ordinances. Star Residential, LLC v. Hernandez, 354 Ga.App. 629, 629, (2020).

Hernandez alleged in his complaint,

“criminal activity and numerous shootings were the result of gang activity at his apartment complex; the complex was used by criminal street gangs for the purpose of conducting gang activity; lack of adequate security provided by the complex’s operator and owner ‘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 Defendants at his apartment complex, Hernandez was injured by criminal street gang activity.”

Star Residential, LLC, at 634 (2020).

The Defendants argued on a motion to dismiss that Plaintiffs could not support a cause of action for treble damages under the GSGTPA. The trial court disagreed, and the Court of Appeals affirmed the trial court’s decision.  The Georgia Supreme Court granted certiorari on November 2nd, 2020 and heard oral arguments from the parties on March 25, 2021 at 10:00am. The Court published its opinion on the issue June 21^st, 2021.

The statute at issue in the case is O.C.G.A. § 16-15-7. “Read as a whole, O.C.G.A. § 16-15-7 provides different causes of action for different remedies with different plaintiffs and defendants.” Star Residential, LLC et al. v. Hernandez, 2021 WL 2518654, (Ga. 2021). Subsection (a) states “Any real property which is … 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.” O.C.G.A. § 16-15-7(a). Subsection (b) identifies the plaintiffs who may pursue such an action.

As in subsection (a), there is no mention in subsection (b) of the availability of civil damages. And, with respect to the remedy that is available under subsection (a) – abatement – private individuals are not listed as proper parties under subsection (b) to pursue such a remedy under the Gang Act.

Star Residential.

The Court held that subsection (c) creates an entirely separate cause of action. Id. “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….” O.C.G.A. § 16-15-7(c). The language in subsection (c) makes it clear that it creates a cause of action against those alleged to have committed acts of street gang terrorism only. Star Residential. Therefore, it is entirely separate from subsections (a) and (b), and there is no basis for a cause of action based on injuries consistent with subsection (c) to be brought against a property owner otherwise not alleged to have “itself committed, attempted to commit, conspired to commit, or solicited, coerced, or intimidated another person to commit any of the criminal gang activity” that caused the injuries.  Star Residential. As a result, the Court held that the damages provision in subsection (c) has no effect on the cause of action created by subsection (a) and (b), regardless of whether a private individual may seek to abate such a nuisance under these subsections. Id. 

This unanimous opinion by the Georgia Supreme Court is a huge win for the Defense bar and for property owners across the State.

You can access this article written by GM Associate, Paul Spann by clicking HERE.