Ruling on an issue that has divided trial courts, the state Court of Appeals declared that a man who sued the Brookhaven apartment complex where he was shot may include claims under Georgia's anti-gang law that allow victims of gang violence to seek treble damages.

The appellate panel turned aside defense arguments that the Georgia Street Gang Terrorism and Prevention Act was never meant to hold landlords responsible for criminals' behavior, whose actions are neither condoned by nor committed with the knowledge of the property owners.

The opinion, written by Presiding Judge Sara Doyle with the concurrence of Judges Christian Coomer and Todd Markle, said the "plain language" of the statute is clear that "any person who is injured by reason of criminal gang activity" can bring an action seeking treble damages.

The law is also clear that, whether such a claim can be brought under the Gang Act is a jury decision, Doyle said, targeting contrary decisions by four trial judges.

"Those courts disregarded the statute's clear mandate" that the finder of fact make that determination, she said, "and instead substituted their own judgment as to that issue. 

"Thus, not only are those orders not binding, the reasoning is not persuasive," Doyle wrote. 

Markle penned a concurring opinion, joined by Doyle, to "emphasize the unusual—and possibly undesirable—procedural posture" the law's "plain and unambiguous" language created. 

"Although the statute is silent as to who is the proper defendant, the plain language makes it clear that the factfinder is to decide whether the action comports with the legislative intent," Markle said.

"I am concerned, however, that this reading causes the unintended consequence of allowing the jury to engage in statutory interpretation and determine whether the landlord or property owner is a proper defendant even if there was no evidence the landlord or property owner participated in the gang activity," he wrote.

That places a decision that should properly be in the hands of a judge into those of the jury, Markle wrote.

"But this is clearly what the statute says, and, to the extent it leads to an absurd result, the remedy is with the legislature," he said.

The majority opinion said arguments challenging the constitutionality of the law—which were raised in an amicus brief filed by the Georgia Defense Lawyers Association—were not addressed by the lower court and thus could not be considered.

The case involves the 2017 shooting of Manuel Hernandez during a robbery at the Terraces at Brookhaven Apartments.

Hernandez filed a premises liability suit against the apartments' owner and management company, Star Residential LLC, in DeKalb County State Court for negligent security and nuisance claims. Later claims were added under the Gang Act. 

According to court filings, the act has only been used in premises liability actions within the last few years, and most have been tossed out by trial courts. 

But last year DeKalb County State Court Judge Dax Lopez declined to dismiss the Gang Act-based claims, citing its language declaring that any property "owned, leased, or used by any criminal street gang for the purpose of conducting criminal gang activity shall constitute a public nuisance" under the law. 

There were allegations of multiple instances of gang activity at the apartments, Lopez wrote, and the plain language of the act authorizes "all the legal remedies for a public nuisance" and "does not expressly limit an action for treble damages only to gangs or their members."

Star Residential appealed, arguing that the act was meant to "take aim at street gangs themselves who conducted the 'criminal gang activity' that causes injury," not to penalize  property owners or managers not involved in any crime. 

The GDLA joined the defendants' appeal, arguing that if the ruling stands, "virtually every subsequent negligent security lawsuit will include a claim" under the act "because it incentivizes litigation by providing for the recovery of treble actual damages."

In denying the apartments' appeal, Doyle wrote that "the statute is silent as to the nature of the cause of action or the intended defendant of such an action."

"Thus, whether the present action is consistent with the intent set forth in [the act] is not a threshold issue for courts to resolve," Doyle wrote,"particularly at the motion to dismiss stage, and we must give effect to that policy choice."

Hawkins Parnell & Young partner Warner Fox, who represents Star Residential with firm colleagues Willie Ellis Jr. and Elliott Ream, said they will likely appeal to the state Supreme Court.

"If the Court of Appeals opinion holds up, we will see these allegations in virtually every premises civil case arising out of a criminal case," said Fox in an email. 

Hernandez is represented by Moore Law Firm principal Leighton Moore and Calvin Smith II and W. Michael Smith of Calvin Smith Law.

Moore hailed the decision.

"The Court of Appeals did what courts in Georgia are supposed to do: It applied the statute according to its text, in light of the law that existed at the time of its enactment," said Moore. "Regarding the concurrence," he said he agreed "that the Legislature trusted the jury to determine whether an award of treble damages was consistent with the statute's intent on the particular facts of each case."

"I respectfully disagree with Judge Markle's concern that this legislative decision gives the jury any undue responsibility," he said. "It's a jury's job to apply the law to the facts in the record. That's no different here."

Freeman Mathis & Gary partner Jake Daly, who authored the GDLA's amicus brief, said the appellate panel didn't fully consider its arguments regarding the Legislature's intent in crafting the Gang Act and instead focusing on the brief's constitutional concerns.   

"Unfortunately, the Court of Appeals did not consider these arguments because it believed the amicus brief was raising a constitutional challenge to the statute," said Daly via e-mail. "As a result, it dismissed these arguments in a footnote without considering them for what they really are—that is, arguments of statutory interpretation that just so happen to require some consideration of constitutional issues."

"I hope the Supreme Court will grant the defendants' petition for a writ of certiorari and consider the merits of these arguments," said Daly.