Criminal Acts in Negligent Security Cases
Do Not Automatically Toll the Statute of Limitations
By: Jack McCall
In Georgia, the statute of limitations for injuries to a person is two years. O.C.G.A. § 9-3-33. The two-year statute of limitations is measured from the date of injury. Walden v. Jones, 252 Ga. App. 692, 694 (2001). A lawsuit filed after the expiration of the statute of limitations is subject to dismissal.
Sometimes the Statute of Limitations is Tolled if There is a Criminal Prosecution
O.C.G.A. § 9-3-99 provides in full:
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 9-3-33.1.1
Often in negligent security cases, the statute of limitations is tolled during the pendency of the underlying criminal prosecution.
However, the tolling of the statute of limitations is not absolute. Plaintiffs who seek to take advantage of the statute of limitations tolling, bear the burden of establishing they are entitled to such tolling. Toliver v. Dawson, No. A23A1252, 2023 WL 9013424, at *1 (Ga. Ct. App. Dec. 29, 2023), reconsideration denied (Jan. 30, 2024) (citing Jenkins v. Keown, 351 Ga. App. 428, 432 (2019)); Harrison v. McAfee, 338 Ga. App. 393, 395 (2016).
The Plaintiff Must Demonstrate a Pending Prosecution Tolled the Statute of Limitations
The statute of limitations is tolled “while the prosecution of the defendant is pending.” O.C.G.A. § 9-3-99; Forbes v. Smith, 338 Ga. App. 546, 548 (2016) (citing Harrison v. McAfee, supra). “The tolling effect does not apply after ‘the prosecution of such crime or act has become final or otherwise terminated.’” Toliver v. Dawson, supra, at *2.
The determination of when a prosecution is finalized is generally based upon entry of the date of the final court order in the criminal proceeding. Williams v. Durden, 347 Ga. App. 363, 367 (2018). If a criminal act is never charged, then there is no tolling of the statute of limitations. Toliver v. Dawson, supra. Where a crime is charged but then dismissed without prejudice, the tolling ends at the time of the dismissal without prejudice, even though the crime could be charged again. Forbes v. Smith, supra.
Not Every Plaintiff Meets the Technical Definition of “Victim” Under the Statute
Criminal tolling of the statute of limitations only applies to plaintiffs who meet the statutory definition of “victim.” Therefore, it does not apply to wrongful death claims brought by family members of a murder victim because they are not included in the legal definition of “victim.” Hicks v. Universal Health Servs., Inc., 364 Ga. App. 769, 776–77 (2022), reconsideration denied (July 8, 2022), cert. denied (Apr. 4, 2023).
Further, a person cited with a criminal offense is not entitled to a tolled statute of limitations based on the prosecution against them even if they were also injured in the subject incident. Toliver v. Dawson, supra, at *3. A plaintiff who engaged in mutual combat is also not a victim under the statute. O.C.G.A. § 17-14-2(b) provides in pertinent part that a “‘Victim’ shall not include any person who is concerned in the commission of such unlawful act,” and O.C.G.A. § 16-2-20 has been interpreted to define those “concerned in the commission of an unlawful act” to include individuals engaged in or assisting in acts of mutual combat. See, Mitchell v. State, 225 Ga. App. 26, 27 (1997).
Why is this Significant?
Not all plaintiffs are entitled to tolling. A plaintiff must demonstrate they are entitled to tolling by showing: (1) there is a criminal prosecution and the prosecution is either still pending or ended so recently that the statute of limitations did not expire prior to the filing of the lawsuit; and, (2) the plaintiff meets the definition of a victim under the statute. Accordingly, the plaintiff must be the actual person injured or the estate of the person injured, and the plaintiff cannot have been charged with the alleged crime or have been engaged in mutual combat.
The application of this rule is of particular interest in cases where there is a potential defense based on the plaintiff engaging in mutual combat. A motion for summary judgment on a statute of limitations defense still requires issues of disputed fact to be viewed in the light most favorable to the non-movant. Ward v. Bergen, 277 Ga. App. 256, 258 (2006). However, a plaintiff may not survive summary judgment merely on speculation or the contents of their pleadings. McQuaig v. Tarrant, 269 Ga. App. 236, 238 (2004). Where a plaintiff wishes to take advantage of statute of limitations tolling and there is a legitimate mutual combat defense, the plaintiff must present some evidence they did not engage in mutual combat. This burden can be almost impossible for an estate to satisfy, as the estate was not present at the time of the incident and generally lacks first-hand knowledge of precisely what happened. This is a strong and underutilized defense that can and should be used in wrongful death cases to encourage estate plaintiffs to file suit within the original two years or to seek dismissal of claims filed thereafter.
1O.C.G.A. § 9-3-33.1 tolls the statute of limitations for injuries sustained by a minor plaintiff until they reach the age of majority.
Attorney Contact Info
Jack McCall
jack.mccall@swiftcurrie.com
404.888.6152