Georgia Statute of Limitations Not Automatically Tolled in Negligent Security Cases

Insurers covering property in Georgia could be on the hook for personal injuries occurring on the premises if the property owners and property managers do not fulfill their duty to exercise ordinary care in keeping their premises and approaches safe, pursuant to the state’s premises liability law, O.C.G.A. § 51-3-1. In 2023, the Georgia Supreme Court ruled in Georgia CVS Pharmacy, LLC v. Carmichael that this duty extends to exercising ordinary care to protect invitees from reasonably foreseeable and preventable criminal acts.

For personal injury claims, the statute of limitations in Georgia is two years. The two-year statute of limitations is measured from the date of injury, and a lawsuit filed after the expiration of the statute of limitations is subject to dismissal.

However, in negligent security cases, sometimes the statute of limitations is extended if there is a criminal prosecution. O.C.G.A. § 9-3-99, the statute that governs the tolling of limitations for tort actions while criminal prosecution is pending, 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.

In short, if there is a criminal prosecution related to the underlying criminal act that forms the basis of a plaintiff’s lawsuit, the statute of limitations can have up to an additional six years added, meaning that a plaintiff could file their lawsuit as late as eight years after the actual incident occurred.

However, the tolling of the statute of limitations is not absolute. According to case law, a plaintiff who seeks to take advantage of the statute of limitations tolling bears the burden of establishing that they are entitled to such tolling.

Which Plaintiffs are Entitled to Tolling?

In determining whether a plaintiff is entitled to tolling of the statute of limitations, a claim analyst can check to see if the following facts are true:

• The underlying crime that forms the basis of the plaintiff’s lawsuit was charged by law enforcement.
• If the victim was an adult when the crime happened, the underlying crime occurred no more than eight years before the complaint was filed.
• If the victim was a minor when the crime happened, the complaint either was filed not more than two years after they turned 18, or if the criminal prosecution is still pending, was filed not more than two years plus the remaining time of the criminal investigation, not to exceed an additional six years after they turn 18.
• The time between the final resolution of the criminal prosecution and the filing of the complaint is no more than two years.
• The plaintiff is not the one charged with the crime.
• The plaintiff is not a family member of the victim of the crime bringing a wrongful death claim.
• The plaintiff did not engage in mutual combat.

If all of the foregoing statements are not true, a plaintiff’s claim might not be entitled to tolling under the statute of limitations and could be subject to dismissal.

Why Is This Significant?

To be entitled to tolling of the statute of limitations, a plaintiff must demonstrate that there was 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 that 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 plaintiff who engaged in mutual combat is also not a victim under the statute O.C.G.A. § 17-14-2(b), which provides in pertinent part that a “‘[v]ictim’ shall not include any person who is concerned in the commission of such unlawful act.” 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.

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 nonmovant. However, a plaintiff may not survive summary judgment merely on speculation or the contents of their pleadings. 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 that 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.

Being aware of when the statute of limitations is tolled and when it is not tolled may assist in dismissing many claims that plaintiffs might assume are tolled.

John “Jack” McCall is a civil defense attorney at Swift, Currie, McGhee & Hiers LLP in Atlanta, Georgia. His practice focuses on the defense of premises liability claims, including cases involving slip and falls, defective construction, elevator malfunction and negligent security.

Read more on the Carmichael case and other negligent security/premises liability cases.

Topics Georgia