A19A2267. STAR RESIDENTIAL, LLC et al. v. HERNANDEZ.
Georgia Court of Appeals
Decided March 16, 2020
Hernandez, the Appellee here, was shot from behind at the door of his apartment, an apartment under the management of the Appellant, Star Residential. The shooting was “an unprovoked attack and robbery” by two shooters and a getaway driver and Hernandez, as plaintiff, brought multiple claims against Star Residential. The claim at issue involves the Georgia Street Gang Terrorism and Prevention Act (“GSGTPA”) (OCGA § 16-15-1 et seq.), and the Appeals Court decision involves statutory interpretation of that law.
Hernandez was paralyzed from the waist down as a result of the shooting. Although the issue in this case was whether or not a motion to dismiss was proper, it offers insight into a plaintiff’s successful use of a nuisance statute to pursue injury due to criminal gang activity, when the property owner had no direct connection to the criminal gang activity itself. Given the strong language behind the GSGTPA, one imagines ready application of this law to a variety of personal injury claims.
Was the Apartment the Wrong Place at Wrong Time the Management’s Fault?
At Trial, Star Residential put forward a motion to dismiss Hernandez’ personal injury claim based on the GSGTPA, as well as his negligence per se claim based on city and county nuisance ordinances. The trial court denied these motions to dismiss, and the denial was appealed, bringing the issue to the Court of Appeals who granted the Defendants’ application for interlocutory review.
(An interlocutory review fits precisely the facts here: a motion at trial was denied, and the losing party wants the higher court to review a legal question raised by the denial before the trial proceeds.)
If a criminal street gang uses real property for criminal activity, it is a public nuisance and subject to laws related to nuisances.
In its decision, the Court of Appeals quotes O.C.G.A. § 16-15-7 at length — as one would expect in a Decision involving statutory interpretation (follow the link for the full text of the statute). Summarizing its main points as relevant to this case:
- If a criminal street gang uses real property for criminal activity, it is a public nuisance and subject to laws related to nuisances. § 16-15-7(a)
- A person injured by criminal activity has a cause of action for three times damage (and maybe punitive damages), however before delivering judgment, the finder of fact must determine “that the action is consistent with the intent of the General Assembly as set forth in Code Section 16-15-2.” § 16-15-7(c)
Looking to the General Assembly’s intent (in 16-15-2 of the same code section), the Court of Appeals makes note of the balance between the “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” and the constitutional right of free assembly. While an interesting aspect of the law at issue, the Appellant here doesn’t pursue the Constitutional implications of the GSGTPA.
Weighing the balance noted above is the Assembly’s acknowledgment of the “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.” Such alarming language should point out clearly that the intent of the law was to protect citizens like Hernandez from injuries like those he suffered, when the injury was caused by criminal gang activity.
Proving a Criminal Gang
The immediately odd thing about this case is that the Plaintiff made little effort to prove that when he was shot the three men were in a gang, or involved in criminal gang activity at the time, and even more odd is that the Defendant at trial didn’t raise this as a question of fact left unproven — something that would possibly have disrailed this claim utterly. Although the plaintiff at trial only offered “general statements followed by legal conclusions that [he] was injured by criminal gang activity, and the Appeals Court noted this lack of specificity as to “question whether the complaint pleaded sufficiently particular facts showing that the two shooters and getaway driver were part of a criminal street gang.” However, since trial court ruled that the complaint met the particularity standard of the GSGTPA statute: “[the appellant] has waived, then, any claim that the trial court erred in this respect by failing to enumerate it as an error and provide any supporting argument.” Gresham v. Harris, 349 Ga. App. 134, 138, n.10 (825 SE2d 516) (2019). Since the Defendants did not challenge this ruling on appeal, there the matter remained.
At the Court of Appeals, the facts given at trial by Hernandez are construed in his favor, and these facts include: repeated acts of criminal violence (including shootings) at the apartment complex and a lack of security allowing this criminal activity to become commonplace.
Since, therefore, the Plaintiff suffered an injury, and since the facts support that this injury was the result of criminal activity, the Court denied the motion to dismiss the GSGTPA claim. The statute itself leaves little room for interpretation.
What is Negligence Per Se?
The Appellant’s second claim was its challenge of the denial of their motion to dismiss the claim based on a local negligence per se laws. Here, Star Residential argued that the laws created no duty on them toward Hernandez. Again, the Court of Appeals disagreed, and upheld the lower court’s denial.
The Court first quotes a general definition of negligence per se from recent case law: “negligence per se arises when a statute [or ordinance] is violated, the person injured by the violation is within the class of persons the [ordinance] was intended to protect, and the harm complained of was the harm the [ordinance] was intended to guard against.” (Goldstein, Garber & Salama, LLC v. J. B., 300 Ga. 840, 845 (2) (797 SE2d 87) (2017).) Then, the Court compares this with the several negligence laws that the plaintiff relied on at the trial court level, and found those laws “mirrors” to the general definition quoted.
These laws do positively state a duty on property owners to maintain their property such that they prohibit criminal acts (e.g., property owners’ duty to prohibit illegal gambling on their property), and to remove criminal perpetrators (referring to the Brookhaven nuisance ordinance).
Because Star Residential had allowed criminal activity to continue, to crease a “war zone” at the apartment complex in the Plaintiff’s words, Residential had failed in this duty, and thus the negligence per se claim was not dismissed.