Statute of limitation tolled for crime in tort suit against other parties even if criminal never prosecuted
When an injury or death claim arises from a crime, in Georgia the clock stops on the statute of limitation up to six years when a criminal prosecution is not complete. That extension of the limitation period now applies to other defendants in the civil case, even if the criminal is never caught and prosecuted.
In July 2016, the Georgia Court of Appeals used textual analysis of a statute to overrule prior court decisions and reach this conclusion.
In Harrison v. McAfee, 2016 WL 3654284, decided July 7, 2016, Judge Nels Peterson analyzed the text of O.C.G.A. § 9-3-99 to overrule a series of earlier court decisions and hold that this statute tolling the time limit for filing suit “applies regardless of whether the defendant in the case has been accused of committing the crime from which the cause of action arise.”
Thus, the textual analysis methodology of the late U.S. Supreme Court Justice Antonin Scalia was applied by a young conservative judge, a product of Harvard Law School and the conservative Federalist Society, to slightly broaden the rights of tort plaintiffs in Georgia.
O.C.G.A. § 9-3-99 provides:
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.
Parsing definitions of the word “any” in the code section, Judge Peterson concluded that “the statute applies to any cause of action in tort, without limitation, so long as that cause of action is brought by a crime victim and ‘arises out of the facts and circumstances relating to the commission of such alleged crime.’”
Therefore, the statute tolled the two-year limitation period for the negligence security personal injury claim against a bar owner by a plaintiff who was injured in a criminal assault in a bar, even though the criminal was never apprehended and prosecuted.
Since two other judges concurred in the judgment only, this decision is “physical precedent only” rather than binding precedent. However, the reasoning applied and respect for Judge Peterson’s intellect may make it persuasive to other judges.
The impact on both negligent security and truck crash cases is not hard to imagine. Often in truck wreck cases, law enforcement withhold access to investigative reports while the criminal case is not concluded. Some District Attorneys cooperate with victims’ attorneys by opening their files but some do not. Under the Harrison decision, the limitation period would be tolled in a claim against a trucking company and others while prosecution of the truck driver is still open.
Similarly, as in the Harrison case, when there is a claim against a business for failure to provide adequate security, the limitation period would be tolled even if a criminal assailant is not caught and prosecuted. Such cases may include shootings and sexual assaults in apartment complexes, hotels and motels.
Every legal claim has a time limit. The reasons for statute of limitation are that a plaintiff with valid claim should pursue it with reasonable diligence, with passage of time evidence of a stale claim may be lost with passage of time, and that prosecution of a long-dormant claim may involve “more cruelty than justice.”
In Georgia, the limitation period for personal injury, wrongful death and medical malpractice claims is two years. However, there are several legal rules for stopping the clock or “tolling” the statute of limitations. Those include minority of the victim, which stops the clock until the 18th birthday so that suit must be filed by the 20th birthday); fraud that prevented the victim from filing suit; unrepresented estate of deceased claimant, tolling limitation period for five years; and unresolved crime that gives rise to the civil claim.
While I would seldom recommend delaying suit for years while waiting for conclusion of a criminal prosecution, there are times when it would be prudent. The Harrison decision provides one more arrow in the quiver in such situations.
Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and lead author of Georgia Law of Torts: Trial Preparation & Practice. A former prosecutor, he was appointed by Gov. Nathan Deal to the Criminal Justice Reform Council. His law practice is based in Atlanta.