2020 Georgia Code
Title 9 - Civil Practice
Chapter 3 - Limitations of Actions
Article 5 - Tolling of Limitations
§ 9-3-90. Individuals Under Disability or Imprisoned When Cause of Action Accrues

Universal Citation: GA Code § 9-3-90 (2020)
  1. Individuals who are legally incompetent because of intellectual disability or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.
  2. Except as otherwise provided in Code Section 9-3-33.1, individuals who are less than 18 years of age when a cause of action accrues shall be entitled to the same time after he or she reaches the age of 18 years to bring an action as is prescribed for other persons.
  3. No action accruing to an individual imprisoned at the time of its accrual which:
    1. Prior to July 1, 1984, has been barred by the provisions of this chapter shall be revived by this chapter, as amended; or
    2. Would be barred before July 1, 1984, by the provisions of this chapter, as amended, but which would not be so barred by the provisions of this chapter in force immediately prior to July 1, 1984, shall be barred until July 1, 1985.

(Laws 1805, Cobb's 1851 Digest, p. 564; Laws 1806, Cobb's 1851 Digest, p. 565; Laws 1817, Cobb's 1851 Digest, p. 567; Ga. L. 1855-56, p. 233, § 19; Code 1863, § 2867; Code 1868, § 2875; Code 1873, § 2926; Code 1882, § 2926; Civil Code 1895, § 3779; Civil Code 1910, § 4374; Code 1933, § 3-801; Ga. L. 1984, p. 580, § 1; Ga. L. 2015, p. 385, § 4-15/HB 252; Ga. L. 2015, p. 675, § 2-3/SB 8; Ga. L. 2015, p. 689, § 3/HB 17.)

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, substituted "intellectual disability" for "mental retardation" in subsection (a). The second 2015 amendment, effective July 1, 2015, in subsection (a), substituted "Individuals" for "Minors and persons" at the beginning; added present subsection (b); redesignated former subsection (b) as subsection (c); in subsection (c), added the paragraph (1) and (2) designators; in the introductory language, substituted "an individual" for "a person" and substituted a colon for ", prior"; in paragraph (c)(1), inserted "Prior" at the beginning, deleted "relating to limitations of actions" following "of this chapter" near the middle, and substituted "; or" for ". No action accruing to a person imprisoned at the time of its accrual which would" at the end; and, in paragraph (c)(2), inserted "Would" at the beginning. The third 2015 amendment, effective July 1, 2015, made identical changes as the second 2015 amendment.

Editor's notes.

- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

Ga. L. 2015, p. 675, § 1-1/SB 8, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Safe Harbor/Rachel's Law Act.'"

Ga. L. 2015, p. 675, § 1-2/SB 8, not codified by the General Assembly, provides that: "(a) The General Assembly finds that arresting, prosecuting, and incarcerating victimized children serves to retraumatize children and increases their feelings of low self-esteem, making the process of recovery more difficult. The General Assembly acknowledges that both federal and state laws recognize that sexually exploited children are the victims of crime and should be treated as victims. The General Assembly finds that sexually exploited children deserve the protection of child welfare services, including family support, crisis intervention, counseling, and emergency housing services. The General Assembly finds that it is necessary and appropriate to adopt uniform and reasonable assessments and regulations to help address the deleterious secondary effects, including but not limited to, prostitution and sexual exploitation of children, associated with adult entertainment establishments that allow the sale, possession, or consumption of alcohol on premises and that provide to their patrons performances and interaction involving various forms of nudity. The General Assembly finds that a correlation exists between adult live entertainment establishments and the sexual exploitation of children. The General Assembly finds that adult live entertainment establishments present a point of access for children to come into contact with individuals seeking to sexually exploit children. The General Assembly further finds that individuals seeking to exploit children utilize adult live entertainment establishments as a means of locating children for the purpose of sexual exploitation. The General Assembly acknowledges that many local governments in this state and in other states found deleterious secondary effects of adult entertainment establishments are exacerbated by the sale, possession, or consumption of alcohol in such establishments.

"(b) The purpose of this Act is to protect a child from further victimization after he or she is discovered to be a sexually exploited child by ensuring that a child protective response is in place in this state. The purpose and intended effect of this Act in imposing assessments and regulations on adult entertainment establishments is not to impose a restriction on the content or reasonable access to any materials or performances protected by the First Amendment of the United States Constitution or Article I, Section I, Paragraph V of the Constitution of this state."

Ga. L. 2015, p. 689, § 1/HB 17, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Hidden Predator Act.'"

Law reviews.

- For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For note, "Taking a Toll on the Equities: Governing the Effect of the PLRA'S Exhaustion Requirements on State Statutes of Limitations," 47 Ga. L. Rev. 1321 (2013). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 43 (2015).



  • General Provisions
  • Minors
  • Legal Incompetents
  • Prisoners

General Provisions

Section not affected by Civil Practice Act.

- Former Code 1933, § 3-801 (see now O.C.G.A. § 9-3-90) was not amended or repealed, directly or by implication, by the Civil Practice Act of 1966 (see now O.C.G.A. Ch. 11, T. 9). Shell v. Watts, 125 Ga. App. 542, 188 S.E.2d 269, rev'd on other grounds, 229 Ga. 474, 192 S.E.2d 265 (1972).

Application to 42 U.S.C.

§ 1983 claims. - Georgia two-year limitations period for personal injuries under O.C.G.A. § 9-3-33 applies to 42 U.S.C § 1983 claims arising in Georgia, but state tolling provisions apply to § 1983 claims as well. Camps v. City of Warner Robins, 822 F. Supp. 724 (M.D. Ga. 1993).

Applicability to third-party practice.

- Statute of limitation does not apply differently as respects third-party practice. Shell v. Watts, 125 Ga. App. 542, 188 S.E.2d 269, rev'd on other grounds, 229 Ga. 474, 192 S.E.2d 265 (1972).

Former Code 1933, § 3-801 (see now O.C.G.A. § 9-3-90) was made applicable to tort actions by former Code 1933, § 3-1005 (see now O.C.G.A. § 9-3-98). City of Atlanta v. Barrett, 102 Ga. App. 469, 116 S.E.2d 654 (1960), overruled in part by Department of Public Safety v. Ragsdale, 839 S.E.2d 541, 2020 Ga. LEXIS 137 (Ga. 2020); Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979).

Right of action must be in disabled party before this section will apply. Grimsby v. Hudnell, 76 Ga. 378, 2 Am. St. R. 46 (1886); Smith v. Turner, 112 Ga. 553, 37 S.E. 705 (1900).

When right to sue is in executor or other legal representative, legatees are bound by statute of limitations. Worthy v. Johnson, 10 Ga. 358, 54 Am. Dec. 393 (1851).

Notice to municipality.

- Six-month notice provision of former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5) was a statute of limitation to which tolling provisions of former Code 1933, § 3-801 (see now O.C.G.A. § 9-3-90) applied. Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979); Jacobs v. Littleton, 241 Ga. App. 403, 525 S.E.2d 433 (1999).

Former Civil Code 1910, § 4374 (see now O.C.G.A. § 9-3-90) had no application to actions by informers which were barred by former Civil Code 1910, § 4370 (see now O.C.G.A. § 9-3-28). Atlanta & W.P.R.R. v. Coleman, 142 Ga. 94, 82 S.E. 499 (1914).

Burden of proving disability is upon person who alleges disability. Arnold v. Limeburger, 122 Ga. 72, 49 S.E. 812 (1905).

Unspecified debilitating mental condition impacting statue.

- Trial court did not err in refusing to toll the statute of limitations after plaintiff contended by affidavit that the plaintiff suffered from an unspecified, debilitating mental condition lasting either 20 or 28 days following the accident was in direct contradiction to the plaintiff's deposition testimony. Walker v. Brannan, 243 Ga. App. 235, 533 S.E.2d 129 (2000).

Evidence of mental incapacity.

- Physical pain and discomfort as described by the plaintiff was not the mental incapacity contemplated by O.C.G.A. § 9-3-90. Anglin v. Harris, 244 Ga. App. 140, 534 S.E.2d 874 (2000).

Brain injury.

- As used in subsection (b) of O.C.G.A. § 9-3-73, the term "legally incompetent because of mental retardation or mental illness" includes those suffering from injury; thus, the tolling provisions of O.C.G.A. § 9-3-90 do not apply even when such mental incapacity exists. Robinson v. Williamson, 245 Ga. App. 17, 537 S.E.2d 159 (2000).

Cited in Jordan v. Thornton, 7 Ga. 517 (1849); Jordan v. Ticknor, 62 Ga. 123 (1878); Munroe v. Phillips, 64 Ga. 32 (1879); Monroe v. Simmons, 86 Ga. 344, 12 S.E. 643 (1890); Bigham v. Kistler, 114 Ga. 453, 40 S.E. 303 (1901); Sutton v. Hancock, 118 Ga. 436, 45 S.E. 504 (1903); Betts v. Hancock, 27 Ga. App. 63, 107 S.E. 377 (1921); Stonecypher v. Coleman, 161 Ga. 403, 131 S.E. 75 (1925); Porter v. Liberty Mut. Ins. Co., 46 Ga. App. 86, 166 S.E. 675 (1932); Latham v. Fowler, 192 Ga. 686, 16 S.E.2d 591 (1941); Tabor v. Hardwick, 224 F.2d 526 (5th Cir. 1955); Levine v. Seley, 217 Ga. 384, 123 S.E.2d 1 (1961); Lacy v. Ferrence, 222 Ga. 635, 151 S.E.2d 763 (1966); Mayor of Athens v. Schaeffer, 122 Ga. App. 729, 178 S.E.2d 764 (1970); Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972); Jones v. Citizens & S. Nat'l Bank, 231 Ga. 765, 204 S.E.2d 116 (1974); Jones v. Hartford Accident & Indem. Co., 132 Ga. App. 130, 207 S.E.2d 613 (1974); Lynott v. Stewart, 505 F.2d 1023 (5th Cir. 1974); Keith v. McLanahan, 147 Ga. App. 342, 249 S.E.2d 128 (1978); Mosley v. Lankford, 244 Ga. 409, 260 S.E.2d 322 (1979); Mullins v. Belcher, 159 Ga. App. 520, 284 S.E.2d 35 (1981); Ward v. Griffith, 162 Ga. App. 194, 290 S.E.2d 290 (1982); Maddox v. Hall County, 162 Ga. App. 371, 291 S.E.2d 442 (1982); Turner v. Evans, 704 F.2d 1212 (11th Cir. 1983); Curlee v. Mock Enters., Inc., 173 Ga. App. 594, 327 S.E.2d 736 (1985); Modern Roofing & Metal Works, Inc. v. Owen, 174 Ga. App. 875, 332 S.E.2d 14 (1985); Morgan v. Sears, Roebuck & Co., 700 F. Supp. 1574 (N.D. Ga. 1988); Crowe v. Humana, 263 Ga. 833, 439 S.E.2d 654 (1994); Hart v. Appling County Sch. Bd., 266 Ga. App. 300, 597 S.E.2d 462 (2004); In re Carter, 288 Ga. App. 276, 653 S.E.2d 860 (2007); Emory Healthcare, Inc. v. Pardue, 328 Ga. App. 664, 760 S.E.2d 674 (2014); Stubbs v. Hall, 308 Ga. 354, 840 S.E.2d 407 (2020).


Privilege of infancy is personal. Jordan v. Thornton, 7 Ga. 517 (1849).

Tolling of statute of limitations.

- Two year statute of limitations for wrongful death applied to a suit alleging tortious termination of life support of a parent and that limitations period was tolled based on the infancy of the parent's child, who was born to the parent prior to the defendant terminating the parent's life support. DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 655 S.E.2d 823 (2007), cert. denied, No. S08C0710, 2008 Ga. LEXIS 477 (Ga. 2008).

Georgia Supreme Court upheld a $2.5 million wrongful death judgment because both the Court and the Georgia Court of Appeals have allowed other persons acting in a representative capacity to maintain a wrongful death action on behalf of a minor child when the surviving spouse declined to pursue the claim. Rai v. Reid, 294 Ga. 270, 751 S.E.2d 821 (2013).

District court properly dismissed an inmate's civil rights action sua sponte as theft-based claims arising from allegations that corrections officials, inter alia, conspired to harass the inmate and destroyed business and personal interests, were barred by the limitations period, the inmate did not assert that equitable tolling applied, and the statutory tolling provisions were inapplicable. Seibert v. Comm'r, Ga. Dep't of Corr., F.3d (11th Cir. Feb. 23, 2017)(Unpublished).

No tolling of statute of limitations.

- Summary judgment was properly granted to the superintendent of schools in a case brought by the parents of handicapped and disabled children allegedly sexually molested by a special education teacher because the statute of limitations had expired as the parents, as next friends for the children, had filed suit on a specific date against the school district and such date barred the subsequent filing of a complaint against the superintendent after the statute of limitations period expired. Harper v. Patterson, 270 Ga. App. 437, 606 S.E.2d 887 (2004).

Minor with legal title protected.

- If legal title to land is vested in infant or is cast upon the infant by operation of law, the infant is protected during period of infancy from running of statute protecting acquisition of adverse interest. Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970).

Appointment of guardian does not operate to start statute of limitation running against minor or guardian when title to cause of action is in minor. Whalen v. Certain-Teed Prods. Corp., 108 Ga. App. 686, 134 S.E.2d 528 (1963); City of Barnesville v. Powell, 124 Ga. App. 132, 183 S.E.2d 55 (1971); Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975).

Title to cause of action in minor.

- When title to cause of action was in minor plaintiffs themselves, representation by another in any fiduciary capacity would not cause statute to run against the plaintiffs. Nelson v. Estill, 190 Ga. 235, 9 S.E.2d 73 (1940).

Statute will not run against minor represented in litigation by next friend or guardian ad litem. Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975); Mitchell v. Hamilton, 228 Ga. App. 850, 493 S.E.2d 41 (1997).

Failure of guardian to protect interest of minor will not operate to the guardian's prejudice. Monroe v. Simmons, 86 Ga. 344, 12 S.E. 643 (1890).

Infancy of party did not prevent the infant from bringing an action and recovering judgment which would become dormant under former Civil Code 1895, §§ 3761, 3762 and 3763 (see now O.C.G.A. § 9-12-60). Williams v. Merritt, 109 Ga. 213, 34 S.E. 312 (1899).

Third-party complainant, a minor, was not barred by the statute of limitations from bringing third-party complaint, since under this section the minor could have waited until the minor's disabilities were removed to bring the minor's claim. Shell v. Watts, 125 Ga. App. 542, 188 S.E.2d 269, rev'd on other grounds, 229 Ga. 474, 192 S.E.2d 265 (1972).

Law of forum state governs in determining when person comes of age, insofar as that date affects running of statute of limitation on claim which the minor asserts. Unnever v. Stephens, 142 Ga. App. 787, 236 S.E.2d 886, aff'd, 240 Ga. 313, 242 S.E.2d 478 (1977).

Disability of infancy is only removed when infant reaches lawful majority. Barnum v. Martin, 135 Ga. App. 712, 219 S.E.2d 341 (1975).

Medical malpractice actions.

- Even though O.C.G.A. § 9-3-90 permits tolling the statute of limitations for disabilities in medical malpractice actions, under § 9-3-90 a minor child must wait until reaching the age of 18 before tolling the two-year limitations period under O.C.G.A. § 9-3-71 barring a medical malpractice action because under O.C.G.A. § 19-7-2 such actions are vested exclusively in the parents until the minor reaches 18. Rose v. Hamilton Medical Ctr., Inc., 184 Ga. App. 182, 361 S.E.2d 1, cert. denied, 184 Ga. App. 910, 361 S.E.2d 1 (1987).

Since the plaintiff was a minor at the time the plaintiff was injured, but attained the age of 18 before the effective date of the 1987 amendment to O.C.G.A. § 9-3-73, neither that Code section nor O.C.G.A. § 9-3-71 applied. Any medical malpractice claim the minor had was governed by the provisions of O.C.G.A. § 9-3-90. Jones v. Bates, 261 Ga. 240, 403 S.E.2d 804 (1991).

Provision of subsection (b) of O.C.G.A. § 9-3-73 that all minors who have attained the age of five years shall be subject to periods of limitation for actions for medical malpractice applies not only to suits brought on behalf of a minor, but also to suits brought personally by an injured minor upon reaching majority. Barnes v. Sabatino, 205 Ga. App. 774, 423 S.E.2d 686 (1992).

Fraud alleged in complaint.

- Action against an insurer arising from settlement of a minor's claim for personal injuries reached over 20 years ago was barred because the claim was not filed within three years of plaintiff's reaching majority and, even though the complaint alleged that the insurer committed fraud, the statute of limitation was not tolled because the plaintiff did not allege that such fraud deterred the action. Zepp v. Toporek, 211 Ga. App. 169, 438 S.E.2d 636 (1994).

Physical disability.

- Holding in City of Atlanta v. Barrett, 102 Ga. App. 469, 116 S.E.2d 654 (1960), that a plaintiff's allegation that the plaintiff was mentally and physically disabled was sufficient to invoke the tolling provisions of O.C.G.A. § 9-3-90, should not be construed as a holding that physical disability alone is sufficient to invoke the provisions. Whisnant v. Coots, 176 Ga. App. 724, 337 S.E.2d 766 (1985).

Legal Incompetents

Using mental incapacity to toll statute of limitations.

- Defendant is precluded from later using a claim of mental incapacity to toll the statute of limitations, since the defendant personally held out to both the defendant's counsel and to the court as being competent and represented that the defendant had the mental capacity to enter the defendant's plea. Foster v. Cohen, 203 Ga. App. 434, 417 S.E.2d 61 (1992).

In an arrestee's suit alleging state tort claims and a federal claim of deliberate indifference to constitutional rights, it was error to dismiss the complaint as untimely because the arrestee's allegation of mental incapacity under the tolling provisions was sufficient to withstand a motion to dismiss on statute- of-limitations grounds since the arrestee's allegation that, when the arrestee was released from jail, the arrestee was of such unsound mind that the arrestee was unable to carry on the arrestee's ordinary life affairs was sufficient. Meyer v. Gwinnett County, F.3d (11th Cir. Jan. 6, 2016)(Unpublished).

Genuine issue of material fact existed as to whether a former detainee, who brought claims arising from an arrest and detention for crimes the detainee claimed not to have committed, suffered mental incapacity sufficient to toll the statute of limitations during the three-week period following the detainee's release from jail; a jury could conclude that the detainee was able to work only because of prior familiarity with the tasks and mindless deference to coworkers and managers. Meyer v. Gwinnett Cty., F.3d (11th Cir. Nov. 14, 2017)(Unpublished).

Question of mental capacity is one of fact to be determined by a jury. Chapman v. Burks, 183 Ga. App. 103, 357 S.E.2d 832 (1987).

Summary judgment for defendant was affirmed, on the basis that plaintiff 's action was barred by the statute of limitations, since the plaintiff did not "come forward" with any evidence contradicting the plaintiff's deposition testimony that, at all relevant times, the plaintiff had been capable of managing the plaintiff's own affairs. Branch v. Carr, 196 Ga. App. 534, 396 S.E.2d 276 (1990).

Traumatic brain injury.

- Term "legally incompetent because of mental retardation or mental illness" has the same meaning in O.C.G.A. § 9-3-73(b) as in O.C.G.A. § 9-3-90 and applied to an action brought on behalf of a patient who was incompetent due to a traumatic brain injury. Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653 (1992).

It cannot be held that statute would never run against illiterate or ignorant person. Jim Walter Corp. v. Ward, 245 Ga. 355, 265 S.E.2d 7 (1980).

Subsection (b) of O.C.G.A. § 9-3-73 subjecting persons who are legally incompetent because of mental retardation or mental illness to periods of limitation for medical malpractice actions required that action be brought within two years of its effective date. Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653 (1992).

Tolling provision of O.C.G.A. § 9-3-90 does not apply in actions for medical malpractice. Dowling v. Lopez, 211 Ga. App. 578, 440 S.E.2d 205 (1993).

Weakness of mind sufficient to toll statute of limitations must be so pronounced as to amount to imbecility, or at least such as would prevent person from understanding nature of the person's act. Barnett v. Ashley, 89 Ga. App. 679, 81 S.E.2d 11 (1954).

Such unsoundness of mind or imbecility as to incapacitate one from managing ordinary business of life will authorize holding that claimant is "mentally incompetent," so as to toll limitation period until disability is removed. Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979).

Inability to manage ordinary business of life.

- Such a degree of unsoundness of mind or imbecility as to incapacitate one from managing ordinary business of life would authorize workers' compensation board to find that claimant was "mentally incompetent," and thus to find that statute of limitations was tolled until disability was removed. Royal Indem. Co. v. Agnew, 66 Ga. App. 377, 18 S.E.2d 57 (1941).

Mental retardation or mental illness.

- Even though the plaintiff may have been mentally ill, the plaintiff was not legally incompetent within the meaning of O.C.G.A. § 9-3-73(b) since the plaintiff's testimony did not show that the plaintiff was incapable of carrying out the plaintiff's day-to-day life activities and making decisions. Charter Peachford Behavioral Health Sys. v. Kohout, 233 Ga. App. 452, 504 S.E.2d 514 (1998).

Test to be applied as to tolling of statute of limitation for mental incompetence is this: "Is his mind so unsound, or is he so weak in his mind, or so imbecile, no matter from what cause, that he cannot manage the ordinary affairs of life?" Mayor of Athens v. Schaeffer, 122 Ga. App. 729, 178 S.E.2d 764 (1970).

Test for mental incapacity is not whether one did not manage one's own affairs, acquiescing in the management thereof by others, or whether one has merely managed one's affairs unsuccessfully or badly, the test is one of capacity - whether the individual, being of unsound mind, could not manage the ordinary affairs of one's life. Lawson v. Glover, 957 F.2d 801 (11th Cir. 1987).

In addressing the issue of whether the statute of limitations has been tolled, the courts have consistently relied upon the testimony that was given by a plaintiff as to his or her own mental soundness or unsoundness. Branch v. Carr, 196 Ga. App. 534, 396 S.E.2d 276 (1990).

When as result of occurrence giving rise to cause of action, the person injured becomes mentally and physically incapacitated, so as to be incapable of acting for oneself in carrying on one's business and in prosecuting claim, and when no guardian is appointed for the person, the statute of limitations for the bringing of an action is tolled until such time as the person regains capacity to act personally or until such time as a guardian is appointed and acts for the person, or until such time as one bona fide acting for the person as next friend brings an action seeking recovery for an injury sustained. Cline v. Lever Bros. Co., 124 Ga. App. 22, 183 S.E.2d 63 (1971).

Plaintiff may establish a toll due to mental incapacity based on the claim that, as a result of the occurrence giving rise to the cause of action, the plaintiff became mentally and physically incapacitated so as to be incapable of acting personally in carrying on the person's business and in prosecuting the person's claim. Lawson v. Glover, 957 F.2d 801 (11th Cir. 1987).

In an action for injuries by a mentally incompetent plaintiff, the statute of limitations did not continue indefinitely and started to run upon entry into the case of the plaintiff's mother's next friend. Price v. Department of Transp., 214 Ga. App. 85, 446 S.E.2d 749 (1994).

Grantor who did not have mental capacity to understand simple subjects or to transact any business during time in question would not have had sufficient mental capacity to undertake to maintain action for recovery of the grantor's property. Mullins v. Barrett, 204 Ga. 11, 48 S.E.2d 842 (1948).

Applicable statute of limitations arguably would not have barred husband of deed grantor from bringing action involving deed more than seven years after the cause of action arose since the husband was allegedly legally incompetent at all relevant times and that disability had not been removed, but the applicable statute of limitations was not similarly tolled as to the deed grantor, the wife of the husband, because the deed grantor was not legally incompetent. Pivic v. Pittard, 258 Ga. App. 675, 575 S.E.2d 4 (2002).

Setting aside of divorce decree by incompetent wife.

- Defendant wife, an incompetent, was not barred by laches from suing to have divorce decree, which was entered some seven years before, set aside for fraud. Lowery v. Browning, 212 Ga. 586, 94 S.E.2d 413 (1956).

Allegations of divorced husband that he was ill when decree was rendered and that such illness continued for about three years thereafter does not bring him within exception made for insane persons in this section. Wallace v. Eiselman, 219 Ga. 595, 134 S.E.2d 807 (1964).

Statutes of limitation begins to run against insane person from time of the person's restoration to sanity. Dicken v. Johnson, 7 Ga. 484 (1849); Brown v. Carmichael, 149 Ga. 548, 101 S.E. 124 (1919).

Allegation of incompetence.

- Allegation that from time of injury to the present the claimant has been mentally incompetent is a sufficient allegation to permit proof that the claimant was incapable of acting personally under this section during the time in question. Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979).

Plaintiff's averment of incompetency rebutted by deposition testimony.

- Trial court did not err by concluding as a matter of law that the tolling statute did not apply, when the plaintiff's averment that the plaintiff was unable to function on a day-to-day basis throughout the seven and one half years since the plaintiff's cause of action arose was rebutted by the plaintiff's deposition testimony. Hickey v. Askren, 198 Ga. App. 718, 403 S.E.2d 225, cert. denied, 198 Ga. App. 898, 403 S.E.2d 225 (1991); Jacobs v. Littleton, 241 Ga. App. 403, 525 S.E.2d 433 (1999).

Plaintiff's contention that the time period for giving the ante litem notice was tolled by the plaintiff's mental incapacity was defeated by the plaintiff's deposition testimony demonstrating that the plaintiff was competent to and did manage the plaintiff's ordinary affairs of life. Carter v. Glenn, 243 Ga. App. 544, 533 S.E.2d 109 (2000).

Tolling of statute of limitations.

- When record evinced factual question of legal incompetence because of mental disability arising after radiation treatment subsequent to surgery prior to which competence was undisputed, granting of summary judgment was improper as complaint was timely filed. Stone v. Radiology Servs., 206 Ga. App. 851, 426 S.E.2d 663 (1992).

Tenant failed to show mental incapacity sufficient, under O.C.G.A. §§ 9-3-90(a) and9-3-91, to toll the statute of limitations in O.C.G.A. § 9-3-33 because the tenant's own testimony indicated that, with the exception of a two-week period of hospitalization, the tenant was able to manage the ordinary affairs of life following a tragic sexual assault; accordingly, the landlord was entitled to summary judgment on the tenant's premises-liability action. Martin v. Herrington Mill, LP, 316 Ga. App. 696, 730 S.E.2d 164 (2012).

Mental incompetent's fraud claim not expired.

- When individual was adjudicated mentally incompetent in 1924, continued as such when the conveyance of the individual's property interest occurred in 1971, and remained so when a claim for fraud upon this conveyance was brought in 1985, the limitations periods of O.C.G.A. § 9-11-60(f) never began to run, and it was as if the transaction contested occurred the day before suit was filed. McLendon v. Georgia Kaolin Co., 813 F. Supp. 834 (M.D. Ga. 1992).


Effect of 1984 amendment.

- Prior to July 1, 1984, O.C.G.A. § 9-3-90 tolled the running of the statutes of limitation for "persons imprisoned"; the legislature, however, amended the statute, effective July 1, 1984, by deleting prisoners from the groups of people protected by the tolling provision. Phillips v. Adams, 210 Ga. App. 439, 436 S.E.2d 567 (1993).

Prisoner not civilly dead.

- Fact that defendant was serving penitentiary sentence did not render the prisoner civilly dead so as to prevent the prisoner from suing or being sued. Heard v. Caldwell, 364 F. Supp. 419 (S.D. Ga. 1973).

Prisoner may sue and be sued.

- Person who has been convicted of an offense against the United States and sentenced to a term in the federal penitentiary is not civilly dead while imprisoned, and may sue and be sued. Hardin v. Dodd, 176 Ga. 119, 167 S.E. 277 (1932).

While serving sentence in federal penitentiary, person can sue and be sued. Heard v. Caldwell, 364 F. Supp. 419 (S.D. Ga. 1973).

Doctrine that prisoner cannot sue no longer exists in this state. Neel v. Rehberg, 577 F.2d 262 (5th Cir. 1978).

Apart from prison discipline and restrictions imposed by statute, there is no inhibition to filing of civil actions by prisoners. Heard v. Caldwell, 364 F. Supp. 419 (S.D. Ga. 1973).

Prisoner may maintain action for injuries received, even though at the time of receiving the injuries the prisoner was a felon and in confinement. Heard v. Caldwell, 364 F. Supp. 419 (S.D. Ga. 1973).

Tort action by inmate against prison officials will lie under law of this state. Heard v. Caldwell, 364 F. Supp. 419 (S.D. Ga. 1973).

Retroactivity provision construed.

- Although the Georgia Supreme Court has yet to interpret the second sentence of subsection (b) of O.C.G.A. § 9-3-90, the court construed a similarly worded retroactivity provision in another statute of limitations as rendering the new statute of limitations applicable to all actions viable as of the effective date of the new statute, with a one year grace period for those actions that would become time-barred by the application of the new rule and the federal Court of Appeals concluded that subsection (b) should be similarly interpreted. Lawson v. Glover, 957 F.2d 801 (11th Cir. 1987).

Tolling of statute of limitations.

- Although prisoners are no longer prohibited from initiating legal actions and the reason for applying O.C.G.A. § 9-3-90 to prisoners may no longer exist, this clear and unambiguous statute tolling the statute of limitation for persons imprisoned must be applied until abrogated by the General Assembly. Cobb v. McDonald, 545 F. Supp. 1290 (N.D. Ga. 1982) (But see 1984 amendment).

In a 42 U.S.C. § 1983 case in which a pro se inmate appealed a district court's adverse ruling on the inmate's deliberate indifference claim, that claim was untimely under O.C.G.A. § 9-3-33 and the inmate did not meet the standard in O.C.G.A. § 9-3-90(a) to toll the limitations period. Though the inmate undoubtedly had mental problems both before and after the assault in prison, under medication the inmate was able to manage the ordinary affairs of the inmate's life. Thompson v. Corr. Corp. of Am., F.3d (11th Cir. June 18, 2012)(Unpublished).

Georgia law does not require a person confined (in a jail or prison) at the time a cause of action arises to file suit within the applicable statutory limitation period as O.C.G.A. § 9-3-90 tolls the statute of limitations. Turner v. Evans, 251 Ga. 486, 306 S.E.2d 921 (1983) (But see 1984 amendment).

O.C.G.A. § 9-3-90 tolls the statute of limitations for persons who are imprisoned. Turner v. Evans, 721 F.2d 341 (11th Cir. 1983). (But see 1984 amendment).

O.C.G.A. § 9-3-90 did not apply to toll the limitation period for a federal inmate suing a federal prison official for an unconstitutional deprivation inflicted during the inmate's incarceration. Hawthorne v. Wells, 761 F.2d 1514 (11th Cir. 1985) (decided prior to 1984 amendment).

Section 1983 suit by prisoner challenging the prisoner's conviction 12 years earlier was barred by a two-year statute of limitations when it was brought after the expiration of the one-year grace period provided by the 1984 amendment to O.C.G.A. § 9-3-90, which removed prisoners from the list of persons benefiting from the tolling provisions, during which grace period prisoners could bring actions which would otherwise be barred by the amended law. Giles v. Garwood, 853 F.2d 876 (11th Cir. 1988), cert. denied, 489 U.S. 1030, 109 S. Ct. 1164, 103 L. Ed. 2d 222 (1989).

Confinement in alternative facility tolls statute of limitations.

- If a plaintiff was involuntarily confined in a hospital or supportive living home, and this confinement resulted directly from the plaintiff's arrest, in that it was an alternative to the plaintiff otherwise having been placed in prison, it would appear that the plaintiff was "imprisoned" and the statute of limitation was tolled under the terms of O.C.G.A. § 9-3-90. Acker v. City of Elberton, 176 Ga. App. 580, 336 S.E.2d 842 (1985), overruled on other grounds by West v. City of Albany, 2017 Ga. LEXIS 177 (Ga. 2017).

Imprisonment of defendant will not operate to advantage of plaintiff who had promissory note that was barred by former Civil Code 1910, § 4361 (see now O.C.G.A. § 9-3-24). Foster, Son & Harlan v. Whitten, 19 Ga. App. 549, 91 S.E. 918 (1917).


Existence of infancy at time of accrual of cause under Ga. L. 1949, p. 1168, § 2 (see now O.C.G.A. § 15-21-50) will postpone commencement of running of period of limitation until infant reaches majority and fact that infant has a guardian who might sue in the infant's name did not prevent the infant in whom were the title and right of action from enjoying statutory benefit accorded the infant by virtue of the infant's disability. 1958-59 Op. Att'y Gen. p. 403.


Am. Jur. 2d.

- 51 Am. Jur. 2d, Limitation of Actions, §§ 216 et seq., 222 et seq., 235.


- 54 C.J.S., Limitations of Actions, §§ 135 et seq., 146.


- Infancy or incompetency of one on whom legal title devolved as interrupting adverse possession previously initiated, 65 A.L.R. 975.

Statute providing that an insane person, minor, or other person under disability may bring suit within specified time after removal of disability as affecting right to bring action before disability removed, 109 A.L.R. 954.

Prescription or adverse possession against one under disability of infancy, coverture, or mental incompetency, 147 A.L.R. 236.

One wrongfully adjudged or committed as insane as within benefit of provision of statute of limitations allowing time to sue after removal of disability, 166 A.L.R. 960.

Proof of unadjudged incompetency which prevents running of statute of limitations, 9 A.L.R.2d 964.

Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward, 86 A.L.R.2d 965.

Effect of infant's marriage after cause of action accrues on running of limitations as against him or her, 91 A.L.R.2d 1272.

Imprisonment of party to civil action as tolling statute of limitations, 77 A.L.R.3d 735.

Minority of surviving children as tolling limitation period in state wrongful death action, 85 A.L.R.3d 162.

Tolling of state statute of limitations in favor of one commencing action despite existing disability, 30 A.L.R.4th 1092.

Tolling of statute of limitation, on account of minority of injured child, as applicable to parent's or guardian's right of action arising out of same injury, 49 A.L.R.4th 216.

Wrongful death: surviving parent's minority as tolling limitation period on suit for child's wrongful death, 54 A.L.R.4th 362.

Medical malpractice statutes of limitation minority provisions, 62 A.L.R.4th 758, 71 A.L.R.5th 307.

Emotional or psychological "blocking" or repression as tolling running of statute of limitations, 11 A.L.R.5th 588.

Power of incompetent spouse's guardian or representative to sue for granting or vacation of divorce or annulment of marriage, or to make compromise or settlement in such suit, 32 A.L.R.5th 673.

Attorney malpractice - tolling or other exceptions to running of statute of limitations, 87 A.L.R.5th 473.

Effect of appointment of legal representative for person under mental disability on running of state statute of limitations against such person, 111 A.L.R.5th 159.

Effect of appointment of legal representative for minor on running of state statute of limitations against minor, 1 A.L.R.6th 407.

When is person, other than one claiming posttraumatic stress syndrome or memory repression, within coverage of statutory provision tolling running of limitations period on basis of mental disability, 23 A.L.R.6th 697.

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