2020 Georgia Code
Title 9 - Civil Practice
Chapter 3 - Limitations of Actions
Article 5 - Tolling of Limitations
§ 9-3-99. Tolling of Limitations for Tort Actions While Criminal Prosecution Is Pending

Universal Citation: GA Code § 9-3-99 (2020)

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years, except as otherwise provided in Code Section 9-3-33.1.

(Code 1981, §9-3-99, enacted by Ga. L. 2005, p. 88, § 2/HB 172; Ga. L. 2015, p. 675, § 2-4/SB 8; Ga. L. 2015, p. 689, § 4/HB 17.)

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, added ", except as otherwise provided in Code Section 9-3-33.1" at the end of the Code section. The second 2015 amendment, effective July 1, 2015, made identical changes.

Editor's notes.

- Ga. L. 2005, p. 88, § 1/HB 172, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Crime Victims Restitution Act of 2005'."

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 article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 43 (2015). For annual survey on torts law, see 69 Mercer L. Rev. 299 (2017). For annual survey on trial practice and procedure, see 69 Mercer L. Rev. 321 (2017). For note, "I Tolled You I Had More Time!: The Future of Tolling Looks Bright for Crime Victims, as the Georgia Court of Appeals Establishes New Meaning of O.C.G.A. § 9-3-99," see 68 Mercer L. Rev. 557 (2017).

JUDICIAL DECISIONS

Tolling applied to tort action arising out of crime, not just against alleged perpetrator.

- Valades v. Uslu, 301 Ga. App. 885, 888-89(1), 689 S.E.2d 338 (2009), Columbia Cty. v. Branton, 304 Ga. App. 149, 152-53(1), 695 S.E.2d 674 (2010), Mays v. Target Corp., 322 Ga. App. 44, 743 S.E.2d 603 (2013), and Orr v. River Edge Cmty. Serv. Bd., 331 Ga. App. 228, 230(1), 770 S.E.2d 308 (2015) were overruled to the extent those cases required that the tort action be brought against a criminal defendant for tolling under O.C.G.A. § 9-3-99 to apply. Harrison v. McAfee, 338 Ga. App. 393, 788 S.E.2d 872 (2016).

Contrary to holdings in prior cases that O.C.G.A. § 9-3-99 applied only to a crime victim's claims against someone accused of committing the crime that formed the basis for the suit, the plain language tolled the statute for any tort action arising out of the crime; stare decisis did not warrant holding firm to this prior erroneous construction. Harrison v. McAfee, 338 Ga. App. 393, 788 S.E.2d 872 (2016).

Ante litem provision in Georgia Tort Claims Act not tolled.

- In a driver's tort action against the Department of Public Safety, the trial court erred in finding that the time for filing the ante litem notice under the Georgia Tort Claims Act pursuant to O.C.G.A. § 50-21-26(a)(1) was subject to tolling under O.C.G.A. § 9-3-99, although the tort at issue arose from a crime because the ante litem notice requirement was not a statute of limitations and it contained no provision for tolling. Dep't of Pub. Safety v. Ragsdale, 308 Ga. 210, 839 S.E.2d 541 (2020).

Application was not retroactive.

- As a vehicle passenger's claim was only two months old when the tolling provisions of O.C.G.A. § 9-3-99 became effective, and the passenger had not yet filed suit, § 9-3-99 was applicable to the action and there was no merit to a claim that it was retroactively applied in violation of Ga. Const. 1983, Art. I, Sec. I, Para. X. Beneke v. Parker, 293 Ga. App. 186, 667 S.E.2d 97 (2008), aff'd in part, rev'd in part, 285 Ga. 733, 684 S.E.2d 243 (2009).

Fine paid for traffic citation.

- Couple had not shown that the statute of limitation on their personal injury claim against a second driver was tolled under O.C.G.A. § 9-3-99; the second driver, who had been cited for making an improper lane change, had paid the fine, and the couple had not provided any citation to the record to support their claim that the second driver remained subject to prosecution. McGhee v. Jones, 287 Ga. App. 345, 652 S.E.2d 163 (2007).

Alleged traffic violation did not toll statute when there was no prosecution.

- Personal injury claim against a driver that was filed as a renewal action under O.C.G.A. § 9-2-61(a) was subject to summary judgment based on the statute of limitations, O.C.G.A. § 9-3-33; because the plaintiffs did not perfect service on the driver in the prior suit, and the statute had run, the plaintiffs could not renew the suit. The statute was not tolled under O.C.G.A. § 9-3-99 because the time for prosecuting the driver for following too closely had expired, and there had been no prosecution. Jenkins v. Keown, 351 Ga. App. 428, 830 S.E.2d 498 (2019).

Traffic violation pending which tolled limitations period.

- Summary judgment in favor of the defendant was reversed because the plaintiff met the plaintiff's burden of producing evidence that the two year limitation period applicable to the plaintiff's tort suit had not run because the statute of limitations was tolled as the plaintiff established that the prosecution of the defendant for the traffic violation remained pending in municipal court until November 18, 2014, which was less than two years before the lawsuit was filed. Williams v. Durden, 347 Ga. App. 363, 819 S.E.2d 524 (2018).

Tolling did not apply to breach of contract legal malpractice action.

- O.C.G.A. § 9-3-99 did not toll the period for the client's breach of contract legal malpractice claim because nothing in the statute tolled the limitations period for a contract action. Cuffie v. Armstrong, 355 Ga. App. 471, 843 S.E.2d 599 (2020).

Tolling determination within province of jury.

- Trial court erred when the court determined as a matter of law that the limitations period pursuant to O.C.G.A. § 9-3-33 in a personal injury action that arose from a vehicle collision was tolled pursuant to O.C.G.A. § 9-3-99 as the determination of whether a driver's act of following another vehicle too closely under O.C.G.A. § 40-6-49(a) was so extreme that it demonstrated intention or criminal negligence under O.C.G.A. § 16-2-1(b) for purposes of applying the tolling provision was within the province of the jury. Beneke v. Parker, 293 Ga. App. 186, 667 S.E.2d 97 (2008), aff'd in part, rev'd in part, 285 Ga. 733, 684 S.E.2d 243 (2009).

Cited in DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 655 S.E.2d 823 (2007); Moats v. Mendez, 349 Ga. App. 811, 824 S.E.2d 808 (2019).

ARTICLE 6 REVIVAL

RESEARCH REFERENCES

ALR.

- General acknowledgment or promise in statement addressed to public as removing bar of limitation, 8 A.L.R. 1258.

Limitation of actions: acknowledgment, new promise, or payment by grantee of mortgaged premises, 18 A.L.R. 1027; 142 A.L.R. 615.

Check in payment of interest or installment of principal as tolling statute of limitations, 28 A.L.R. 84; 125 A.L.R. 271.

Power of legislature to revive a right of action barred by limitation, 36 A.L.R. 1316; 133 A.L.R. 384; 133 A.L.R. 384.

Effect as regards interest of acknowledgment, new promise, or payment which takes case out of statute of limitations as regards principal, 78 A.L.R. 959.

Power of legislature to revive a right of action barred by limitation or to revive an action which has abated by lapse of time, 133 A.L.R. 384.

Amendment of pleading after limitation period changing from allegation of negligence to allegation of fraud, or vice versa, as stating a new cause of action, 141 A.L.R. 1363.

Limitation of actions: acknowledgment, new promise, or payment by grantee of mortgaged premises, 142 A.L.R. 615.

Acknowledgment or payment effective to toll statute against corporation on obligation upon which it is bound as a co-obligor with a corporate officer as supporting an inference of acknowledgment which will toll statute as against latter, or vice versa, 144 A.L.R. 1019.

Giving of collateral as acknowledgment and new promise to pay tolling statute of limitations, 171 A.L.R. 315.

Entry or endorsement by creditor on note, bond, or other obligation as evidence of part payment which will toll the statute of limitations, 23 A.L.R.2d 1331.

Part payment or promise to pay judgment as affecting the running of statute of limitations, 45 A.L.R.2d 967.

Reviving, renewing, or extending judgment by order entered after expiration of statutory limitation period on motion made or proceeding commenced within such period, 52 A.L.R.2d 672.

General appearance as avoiding otherwise effective bar of statute of limitations, 82 A.L.R.2d 1200.

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