Except as otherwise provided in this article, actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues.
(Laws 1767, Cobb's 1851 Digest, p. 562; Laws 1805, Cobb's 1851 Digest, p. 564; Ga. L. 1855-56, p. 233, § 5; Code 1863, § 2992; Code 1868, § 3005; Code 1873, § 3060; Code 1882, § 3060; Civil Code 1895, § 3900; Civil Code 1910, § 4497; Code 1933, § 3-1004; Ga. L. 1964, p. 763, § 1; Ga. L. 2015, p. 675, § 2-1/SB 8.)
The 2015 amendment, effective July 1, 2015, substituted "Except as otherwise provided in this article, actions" for "Actions" at the beginning of this Code section.
Editor's notes.- Ga. L. 2015, p. 675, § 1-1/SB 8, not codified by the General Assembly, provides: "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: "(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."
Law reviews.- For article, "Actions for Wrongful Death in Georgia: Part Two," section two, see 20 Ga. B.J. 152 (1957). For article discussing aspects of third party practice (impleader) under the Georgia Civil Practice Act (Ch. 11 of this title), see 4 Ga. St. B.J. 355 (1968). For survey article on insurance, see 34 Mercer L. Rev. 177 (1982). For survey article on torts, see 34 Mercer L. Rev. 271 (1982). For survey article on workers' compensation, see 34 Mercer L. Rev. 335 (1982). For article, "Latent Injuries and the Statute of Limitations: A New Rule Emerges in Georgia," see 19 Ga. St. B.J. 12 (1982). For survey of Eleventh Circuit cases on trial practice and procedure, see 39 Mercer L. Rev. 1307 (1988). For annual survey of law of torts, see 56 Mercer L. Rev. 415 (2004). For survey article on product liability law, see 59 Mercer L. Rev. 331 (2007). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For annual survey on product liability, see 61 Mercer L. Rev. 267 (2009). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 43 (2015). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 63 (2019). 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 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). For comment on Schimmel v. Greenway, 107 Ga. App. 257, 129 S.E.2d 542 (1963), see 14 Mercer L. Rev. 444 (1963). For comment, "Strict Liability Actions - Which Statute of Limitations?," see 31 Mercer L. Rev. 773 (1980). For comment, "Accrual and Unusual? Calibrating the Statute of Limitations on Section 1983 Method-of-Execution Challenges," see 62 Emory L.J. 407 (2012).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- For decisions under this section as to limitations for bringing medical malpractice actions prior to enactment of Article 4 of this chapter, see annotations under Code Section 9-3-71.
Fraud not shown.
- Trial court erred in ruling that the statute of limitation in a personal injury suit was tolled by fraud and in granting leave allowing motorist's employers to be added as parties to the suit after the statute of limitation had expired; there was no evidence that the motorist intentionally provided an incorrect answer to an interrogatory concerning the motorist's employment or that the motorist had conspired with the motorist's employers to prevent them from being added as parties. M.J.E.S. Enters. v. Martin, 265 Ga. App. 652, 595 S.E.2d 367 (2004).
Scope of application of O.C.G.A. § 9-3-33 is determined by nature of injury sustained rather than the legal theory underlying the claim for relief. Daniel v. American Optical Corp., 251 Ga. 166, 304 S.E.2d 383 (1983).
Action to recover for personal injuries is, in essence, a personal injury action, and, regardless of whether it is based upon an alleged breach of an implied warranty or is based upon an alleged tort, the limitations statute governing actions for personal injuries is controlling. Adair v. Baker Bros., 185 Ga. App. 807, 366 S.E.2d 164 (1988).
In an action against a corporate operator of a treatment program for violations of the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO), breach of third party beneficiary contract, breach of written contract, fraud, and breach of fiduciary duty, the general limitation of O.C.G.A. § 9-3-33 did not apply to the RICO, fraud, and ex contractu counts which were covered by the specific statutes of limitation pertaining thereto. Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259, 447 S.E.2d 617 (1994).
In an action regarding the alleged removal of eye tissue from a corpse without permission, plaintiff's claims seeking redress for personal injury were properly dismissed pursuant to O.C.G.A. § 9-3-33. Bauer v. North Fulton Med. Ctr., Inc., 241 Ga. App. 568, 527 S.E.2d 240 (1999).
Injury to property.
- Insurer's negligence claim was timely because it sought recovery for damages to its property, and thus, the claim was governed by the four year limitations period of O.C.G.A. § 9-3-33, rather than by a two year limitations period. Arch Ins. Co. v. Bennett, F. Supp. 2d (N.D. Ga. Dec. 21, 2009).
Counterclaims.
- Counterclaim was timely if filed within the time that a party was obligated to answer the main action as long as the limitations period for the counterclaim had not expired before the main action was filed. When both the main action against a truck driver and the truck driver's third party complaint against an injured person were filed within the two year statute of limitations period, the injured person's personal injury counterclaim against the truck driver was not barred even though it was filed beyond the two year period, and the trial court erred in dismissing the counterclaim. Harpe v. Hall, 266 Ga. App. 340, 596 S.E.2d 666 (2004).
Claims under 29 U.S.C.§ 701, 42 U.S.C. § 12131. - When a federal statute does not contain a limitations period, courts should look to the most analogous state statute of limitations; because Georgia has not passed a state law identical to the Rehabilitation Act from which to borrow a limitations period, the two year statute of limitations for personal injury will be applied. Everett v. Cobb County Sch. Dist., 138 F.3d 1407 (11th Cir. 1998).
In a case in which the district court dismissed a tenant's claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act as time-barred based on the two-year statute of limitations in O.C.G.A. § 9-3-33, the tenant conceded that the complaint was filed more than two years after the last act of discrimination and unsuccessfully argued that the complaint was timely because the tenant was entitled to statutory tolling under the Fair Housing Act (FHA). Although the FHA contained a statutory tolling provision, the tenant cited no authority for the contention that the FHA extended to claims raised under the ADA or the Rehabilitation Act. Hunt v. Ga. Dep't of Cmty. Affairs, F.3d (11th Cir. Sept. 18, 2012)(Unpublished).
Claims under the Individuals with Disabilities Education Act.- The 30 day limitations period applicable to administrative appeals, rather than the two year personal injury limitations period, applies to an appeal of an educational agency's final administrative decision under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. Cory D., by & Through Diane D. v. Burke County Sch. Dist., 285 F.3d 1294 (11th Cir. 2002).
Claims under 29 U.S.C.
§ 794. - Although the specific claim of alleged wrongful termination for being HIV positive was one of employment discrimination to which O.C.G.A. § 34-6A-6(a) would have applied, the federal characterization of claims brought under 29 U.S.C. § 794 as "injuries to the person" makes O.C.G.A. § 9-3-33 the most analogous statute of limitations. Henrickson v. Sammons, 263 Ga. 331, 434 S.E.2d 51 (1993).
Application to 42 U.S.C.
§ 1985 claims. - In an employment discrimination case that alleged, inter alia, violations of 42 U.S.C. §§ 1983 and 1985, a district court's dismissal was affirmed because the complaint was not filed within the two-year limitations period established for such claims under O.C.G.A. § 9-3-33. Roberts v. Georgia, F.3d (11th Cir. Apr. 6, 2007)(Unpublished).
Claims under 42 U.S.C.
§ 1981. - Employee's race discrimination claims against an employer under 42 U.S.C. § 1981, based on a failure to promote, were barred by the applicable two-year limitations period of O.C.G.A. § 9-3-33. Saunders v. Emory Healthcare, Inc., F.3d (11th Cir. Jan. 11, 2010), cert. denied, 562 U.S. 1216, 131 S. Ct. 1473, 179 L. Ed. 2d 300 (2011)(Unpublished).
Claims under 42 U.S.C.§ 1983. - There was no error in dismissing the petitioner's civil rights complaint without prejudice and the petitioner's subsequent motion to reconsider because the petitioner did not identify any legal standards or procedures the judge improperly applied, manifest errors in fact-finding by the judge, or newly discovered evidence; 42 U.S.C. § 1983 claims were subject to the statute of limitations governing personal injury actions in the state where the Section 1983 action was brought. McFarlin v. Douglas County, F.3d (11th Cir. Sept. 30, 2014)(Unpublished).
Because imposition of a sentence upon a plea of nolo contendere was not a dismissal or a nolle prosse, O.C.G.A. § 35-3-37(h)(2)(A), providing for restriction of access to certain criminal history records, did not apply to an applicant's plea of nolo contendre to theft by taking; and the applicant's civil rights claim was barred by the statute of limitations, O.C.G.A. § 9-3-33. Nasir v. Gwinnett County State Court, 341 Ga. App. 63, 798 S.E.2d 695 (2017).
Relevancy of delay in filing action.
- If the plaintiff has filed the plaintiff's lawsuit within the statute of limitation, the plaintiff is entitled to seek to recover without having to address the irrelevant issue of why the plaintiff failed to institute the litigation earlier. The law only requires that a plaintiff file a lawsuit within the applicable statute of limitation. Therefore, the only "delay" in filing a complaint that has any legal relevancy whatsoever is that which renders the complaint untimely, not that which merely renders the complaint nearly untimely. Turner v. W.E. Pruett Co., 202 Ga. App. 287, 414 S.E.2d 248 (1991), cert. denied, 202 Ga. App. 907, 414 S.E.2d 248 (1992).
Length of time that has passed between an allegedly actionable occurrence and the giving of an eyewitness' account of that occurrence may be relevant to the credibility of that eyewitness' account. The memory of any eyewitness, whether for the plaintiff or the defendant, can fade over time. However, the length of time that has passed between an allegedly actionable occurrence and the filing of a lawsuit based upon that occurrence has absolutely no arguable relevance whatsoever to the credibility of the plaintiff's eyewitnesses. Turner v. W.E. Pruett Co., 202 Ga. App. 287, 414 S.E.2d 248 (1991), cert. denied, 202 Ga. App. 907, 414 S.E.2d 248 (1992).
Separate classification of medical malpractice actions is rational exercise of legislative power, as is different treatment for actions for loss of consortium arising out of medical malpractice, insofar as limitation of actions is concerned. Hamby v. Neurological Assocs., P.C., 243 Ga. 698, 256 S.E.2d 378 (1979); Perry v. Atlanta Hosp. & Medical Ctr., 255 Ga. 431, 339 S.E.2d 264 (1986).
Accrual of damages not limited.
- Statute of limitations sets time in which action must be filed, but does not limit time in which damages may accrue, as the plaintiff may by amendment allege and prove additional damages which may have occurred after action is filed. Renfroe v. Bronson, 156 Ga. App. 216, 274 S.E.2d 659 (1980).
Word "year" in O.C.G.A. § 9-3-33 means a calendar year, that is, from January 1 to December 31, inclusive. Georgia R.R. & Banking v. Thigpen, 113 Ga. App. 65, 147 S.E.2d 346 (1966).
Day of injury counts.
- In computing time, day on which act was done is included. Peterson v. Georgia R.R. & Banking, 97 Ga. 798, 25 S.E. 370 (1896).
Day of the injury must be counted in determining whether action was brought within period of limitation, and no fractions of day are recognized. Dowling v. Lester, 74 Ga. App. 290, 39 S.E.2d 576 (1946); Lowe v. Bailey, 112 Ga. App. 516, 145 S.E.2d 622 (1965), cert. denied, 385 U.S. 824, 87 S. Ct. 56, 17 L. Ed. 2d 61 (1966), overruled on other grounds, Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979); Davis v. Hill, 113 Ga. App. 280, 147 S.E.2d 868 (1966), overruled on other grounds, Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979); Holliday v. Lacy, 118 Ga. App. 341, 163 S.E.2d 750 (1968).
Effect of O.C.G.A.
§§ 1-3-1(d)(3) and9-11-6(a). - Time provisions of former Code 1933, § 102-102 and Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. §§ 1-3-1(d)(3) and9-11-6(a)) will not permit claim that was otherwise bound by two-year statute of limitations in former Code 1933, § 3-1004 (see now O.C.G.A. § 9-3-33) to be filed two years to the day after the date of the accident. Reese v. Henderson, 156 Ga. App. 809, 275 S.E.2d 664 (1980).
When the plaintiff's cause of action sounded in two phases, one setting forth an action for slander and the second for an interference with the plaintiff's business, the trial court erred in granting the defendant summary judgment on the basis of the bar of the statute of limitations, under O.C.G.A. § 9-3-33, since the cause of action arose some three years prior to when the suit was brought. Hill v. Crabb, 166 Ga. App. 387, 304 S.E.2d 510 (1983).
Wrongful death action.- In a wrongful death action, the Georgia statute of limitations was applicable because it constituted substantive law under Maryland's choice of law rules. Potts v. United Technologies Corp., 879 F. Supp. 1196 (N.D. Ga. 1994).
As children of a deceased nursing home resident had not served two defendants by the time of a hearing on their motion to dismiss the wrongful death complaint against them, which hearing was held more than 17 months after the suit was filed and more than eight months after the motion seeking dismissal on the grounds of laches, and the children offered no reason for the delay, there was no abuse of discretion in granting the dismissal request; there was a two-year limitation period on the wrongful death claim under O.C.G.A. § 9-3-33, and the first complaint had been filed two days before that statutory period expired. Williams v. Alvista Healthcare Ctr., Inc., 283 Ga. App. 613, 642 S.E.2d 232 (2007).
Plaintiffs' motion to add the decedent's widow as a plaintiff in the wrongful death action was improperly denied as the plaintiff's motion met the relation-back requirements because the proposed amendment would not have altered the substance of the wrongful death claim or changed the underlying circumstances set forth in the original complaint; the widow's claim clearly arose out of the same occurrence as that alleged in the original complaint; there was no evidence of prejudice to the defendants or dilatory tactics by the plaintiffs as the original complaint was filed within the applicable statute of limitation; and, although the widow initially did not want to participate in the lawsuit, later the widow's mind was changed. Seay v. Valdosta Kidney Clinic, LLC, 353 Ga. App. 378, 837 S.E.2d 529 (2020).
Cause of action for legal malpractice, alleging negligence or unskillfulness, may sound in tort and thus be subject to the one-year and/or two-year limitation of O.C.G.A. § 9-3-33. Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 306 S.E.2d 340 (1983), aff'd, 252 Ga. 149, 311 S.E.2d 818 (1984); Kilby v. Shepherd, 177 Ga. App. 462, 339 S.E.2d 742 (1986).
Cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four-year statute of limitation in O.C.G.A. § 9-3-25, but a cause of action can also sound in tort and, thus, be subject to the one-year and/or two-year limitation of O.C.G.A. § 9-3-33. Ballard v. Frey, 179 Ga. App. 455, 346 S.E.2d 893 (1986); Coleman v. Hicks, 209 Ga. App. 467, 433 S.E.2d 621 (1993).
When the defendant's counterclaim did not seek tort damages for any "injuries to the person" within the ambit of O.C.G.A. § 9-3-33, but sought only those damages alleged to be the result of plaintiff-attorney's negligent breach of a contract of employment, the trial court erred in striking the counterclaim based upon the two-year statute of limitation defense. Ballard v. Frey, 179 Ga. App. 455, 346 S.E.2d 893 (1986).
Legal malpractice claim may sound either in tort or contract, depending on the circumstances. The circumstances on which it depends, however, are those involving the attorney-client relationship, the duty involved, and the breach thereof, not those involving the nature of the underlying action for which the attorney was consulted or retained. Plumlee v. Davis, 221 Ga. App. 848, 473 S.E.2d 510 (1996).
In a legal malpractice action based on the defendant's failure to advise the plaintiff regarding the applicable statute of limitation in a prior action, the statute of limitation began to run when the statute of limitation on the plaintiff's original personal injury claim expired without suit being filed. Harrison v. Beckham, 238 Ga. App. 199, 518 S.E.2d 435 (1999).
Actions barred.
- Action brought on December 3, 1952, for damages for injuries to the person alleged to have been sustained on December 3, 1950, was barred by this section. Gibson v. Kelley, 88 Ga. App. 817, 78 S.E.2d 76 (1953).
Action brought November 24, 1964, to recover damages for injury sustained November 24, 1962, is barred by this section, as running of the statute begins on the day the injury was suffered, without reference to time of day or fractions of days. Earwood v. Liberty Loan Corp., 136 Ga. App. 799, 222 S.E.2d 204 (1975).
Since the automobile collision occurred on April 7, 1978, at 5:00 p.m., and the plaintiff filed a complaint on Monday, April 7, 1980, at 3:56 p.m., the claim is barred by the two-year statute of limitations in this section. Reese v. Henderson, 156 Ga. App. 809, 275 S.E.2d 664 (1980).
Trial court properly dismissed the second of two personal injury lawsuits, with prejudice, as such did not act as a renewal action, given evidence that the first suit, though timely filed, was void because service was never perfected; moreover, dismissal was properly entered with prejudice as res judicata barred the litigant from filing a subsequent lawsuit on a claim that was already held as time-barred. Towe v. Connors, 284 Ga. App. 320, 644 S.E.2d 176 (2007).
Because the alleged incident in a hospital occurred nearly five years before the complaint was filed, the claims involving a hospital incident were time-barred under O.C.G.A. § 9-3-33; thus, the district court did not abuse the court's discretion in dismissing the action against the state and several of the state's officials. Simon v. Georgia, F.3d (11th Cir. June 16, 2008)(Unpublished).
Resident's third automobile personal injury lawsuit against a former resident was properly dismissed because service of the resident's second lawsuit was not perfected in accordance with the Georgia Long-Arm Statute, O.C.G.A. § 9-10-91, and the period of limitations in O.C.G.A. § 9-3-33 ran before the third lawsuit (allegedly as a renewal of the second lawsuit under O.C.G.A. § 9-2-61) was filed. Coles v. Reese, 316 Ga. App. 545, 730 S.E.2d 33 (2012).
Trial court should have dismissed an employee's tort claims against a supervisor because an arbitration between them and their employer was not a proceeding that could be renewed under O.C.G.A. § 9-2-61(a), and the claims were untimely under O.C.G.A. § 9-3-33 since the claims were not filed within six months of the dismissal or discontinuation of the employee's earlier federal action. Green v. Flanagan, 317 Ga. App. 152, 730 S.E.2d 161 (2012).
Many of the actions cited by an employee as supporting the employee's intentional infliction of emotional distress claims related to failure to promote the employee were barred by Georgia's two-year statute of limitations at O.C.G.A. § 9-3-33; the statute's four-year period related to consortium claims. Scott v. Rite Aid of Ga., Inc., F. Supp. 2d , F. Supp. 2d (M.D. Ga. Jan. 18, 2013).
Conclusion that the personal injury claimant was guilty of laches was upheld based on a finding that the claimant first attempted to serve the opposing party five days before the expiration of the two-year statute of limitations for personal injury actions, the opposing party was not served until a month after the initial attempt, and the claimant failed to explain how the claimant determined the opposing party's last address. Walker v. Culpepper, 321 Ga. App. 629, 742 S.E.2d 144 (2013).
Trial court properly dismissed the employee's claims for defamation, intentional infliction of emotional distress, and negligent retention as barred by the statute of limitations because the limitations periods were only one or two years, the complaint was not filed until nearly four years after the employee was terminated, and the statute of limitations was not tolled due to fraudulent concealment, which the employee knew about when the employee filed the employee's federal action, more than two years earlier. Clemons v. Delta Airlines, Inc., 338 Ga. App. 844, 790 S.E.2d 814 (2016).
Insurance subrogation actions.
- Under O.C.G.A. § 33-7-11(f), in a subrogation action by an insurer to recover personal injury payments made to its insured, the insurer is bound by the two-year limitation of O.C.G.A. § 9-3-33, not the 20-year limitation of O.C.G.A. § 9-3-22. Whirl v. Safeco Ins. Co., 241 Ga. App. 654, 527 S.E.2d 262 (1999).
Negligence of court clerk.- Action brought to recover damages from superior court clerk for negligent failure to send record in appeal case to Supreme Court within time required by law was an action to recover damages for conversion of personal property, not an action for injury to the person under this section. Singletary v. GMAC, 73 F.2d 453 (5th Cir. 1934).
Maritime injuries.- In action brought by shore worker as vicarious seaman to recover for maritime injuries caused by negligence or unseaworthiness of vessel, appropriate statute of limitations period is not this section, but rather three-year period under federal Jones Act (46 U.S.C. 688). Flowers v. Savannah Mach. & Foundry Co., 310 F.2d 135 (5th Cir. 1962).
Application to mandamus claim.
- After federal claims were dismissed in a former employee's action against a county employer, the employee's mandamus claims against a county official for reinstatement were not straightforward so as to allow the court to accept jurisdiction of state claims under 28 U.S.C. § 1367 because it was unclear whether ante litem notice was required under O.C.G.A. § 36-11-1 and whether a one-year limitations of O.C.G.A. § 9-3-33 applied to the mandamus claim. Toma v. Columbia County, F. Supp. 2d (S.D. Ga. Apr. 20, 2007).
Application to 42 U.S.C.
§ 1983 claims. - Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. E. 2d 254 (1985), requires the retroactive application of the two-year limitations period set forth in O.C.G.A. § 9-3-33 for personal injuries to all 42 U.S.C. § 1983 claims in Georgia. Williams v. City of Atlanta, 794 F.2d 624 (11th Cir. 1986); Day v. Brown, 207 Ga. App. 134, 427 S.E.2d 104 (1993).
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).
In an employment discrimination case in which a former employee's initial complaint was dismissed without prejudice because the former employee had not effected service within 120 days, a district court's dismissal of the former employee's 42 U.S.C. §§ 1983 and 1985 claims in a second complaint was affirmed because the claims were not timely under O.C.G.A. § 9-3-33, the Georgia statute borrowed for 42 U.S.C. §§ 1983 and 1985 claims. Since the former employee's initial complaint had been dismissed by court order granting the defendants' motions, the former employee's initial suit was void and incapable of renewal under O.C.G.A. § 9-2-61. Miller v. Georgia, F.3d (11th Cir. Mar. 15, 2007)(Unpublished).
In a 42 U.S.C. § 1983 case in which a death row inmate challenged Georgia's three-drug lethal injection method, the complaint was untimely; the complaint was governed by the two-year statute of limitations found in O.C.G.A. § 9-3-33, and the inmate's claim accrued in 2001 when the General Assembly adopted lethal injection as Georgia's method of execution for death sentences as found in O.C.G.A. § 17-10-38. Alderman v. Donald, F.3d (11th Cir. Sept. 3, 2008)(Unpublished).
Detainee's 42 U.S.C. § 1983 claims against six unnamed deputies were dismissed under Fed. R. Civ. P. 4(n) when more than two years after bringing suit and more than four years after the detainee's alleged injury occurred, the detainee failed to substitute named parties as defendants, and thus, the two-year limitations period in O.C.G.A. § 9-3-33 for 42 U.S.C. § 1983 claims expired. Williams v. Barrett, F.3d (11th Cir. July 17, 2008)(Unpublished).
Appeal from denial of a prisoner's 42 U.S.C. § 1983 claim alleging Eighth Amendment violations was frivolous because all of the prisoner's claims were barred by the two-year statute of limitations set forth in O.C.G.A. § 9-3-33. Kellat v. Douglas County, F.3d (11th Cir. Apr. 7, 2011).
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).
Application to Bivens claims.- Two-year personal injury limitations period applied to claims for damages for malicious prosecution and various constitutional violations under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Kelly v. Serna, 87 F.3d 1235 (11th Cir. 1996).
Claims for damages for malicious prosecution and various constitutional violations under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) accrued on the date plaintiff's convictions were reversed. Kelly v. Serna, 87 F.3d 1235 (11th Cir. 1996).
Cited in Frazier v. Georgia R.R. & Banking, 101 Ga. 70, 28 S.E. 684 (1897); Western & Atl. R.R. v. Bass, 104 Ga. 390, 30 S.E. 874 (1898); Hutcherson v. Durden, 113 Ga. 987, 39 S.E. 495, 54 L.R.A. 811 (1901); Atlantic, V. & W.R.R. v. McDilda, 125 Ga. 468, 54 S.E. 140, 114 Am. St. R. 240 (1906); Gordon v. West, 129 Ga. 532, 59 S.E. 232, 13 L.R.A. (n.s.) 549 (1907); Crawford v. Crawford, 134 Ga. 114, 67 S.E. 673, 28 L.R.A. (n.s.) 353, 19 Ann. Cas. 932 (1910); Harris v. Black, 143 Ga. 497, 85 S.E. 742 (1915); Mayor of Unadilla v. Felder, 145 Ga. 440, 89 S.E. 423 (1916); Ternest v. Georgia C. & P.R.R., 19 Ga. App. 94, 90 S.E. 1040 (1916); Seabord Air-Line Ry. v. Brooks, 151 Ga. 625, 107 S.E. 878 (1921); Stoddard v. Campbell, 27 Ga. App. 363, 108 S.E. 311 (1921); Phillips v. Fireman's Fund Ins. Co., 31 Ga. App. 541, 121 S.E. 255 (1924); Williams v. Seaboard Air-Line Ry., 33 Ga. App. 164, 125 S.E. 769 (1924); Mansor v. Wilcox, 35 Ga. App. 213, 132 S.E. 251 (1926); Bagwell v. Rice & Hutchins Atlanta Co., 38 Ga. App. 87, 143 S.E. 135 (1928); Hendricks v. Citizens & S. Nat'l Bank, 43 Ga. App. 408, 158 S.E. 915 (1931); Arnold v. Rogers, 43 Ga. App. 390, 159 S.E. 136 (1931); McFarlan v. Manget, 179 Ga. 17, 174 S.E. 712 (1934); Clark v. Newsome, 180 Ga. 97, 178 S.E. 386 (1935); Edwards v. Monroe, 54 Ga. App. 791, 189 S.E. 419 (1936); Hosford v. Hosford, 58 Ga. App. 188, 198 S.E. 289 (1938); Atkinson v. Fidelity & Cas. Co., 187 Ga. 590, 1 S.E.2d 744 (1939); City of Rome v. Rigdon, 192 Ga. 742, 16 S.E.2d 902 (1941); Turpentine & Rosin Factors, Inc. v. Travelers Ins. Co., 45 F. Supp. 310 (S.D. Ga. 1942); Wall v. Brim, 145 F.2d 492 (5th Cir. 1944); Peerless Woolen Mills v. Pharr, 74 Ga. App. 459, 40 S.E.2d 106 (1946); Moore v. Green, 86 Ga. App. 70, 70 S.E.2d 782 (1952); James v. Tarpley, 209 Ga. 421, 73 S.E.2d 188 (1952); Saffold v. Scarborough, 91 Ga. App. 628, 86 S.E.2d 649 (1955); Burks v. Wheeler, 92 Ga. App. 478, 88 S.E.2d 793 (1955); Chitty v. Horne-Wilson, Inc., 92 Ga. App. 716, 89 S.E.2d 816 (1955); Collins v. Howard, 156 F. Supp. 322 (S.D. Ga. 1957); Sicklesmith v. Citizens Bank, 101 Ga. App. 533, 114 S.E.2d 319 (1960); Nix v. Davis, 106 Ga. App. 206, 126 S.E.2d 467 (1962); Schimmel v. Greenway, 107 Ga. App. 257, 129 S.E.2d 542 (1963), see 14 Mercer L. Rev. 444 (1963); Lillibridge v. Riley, 316 F.2d 232 (5th Cir. 1963); Clinton v. State Farm Mut. Auto. Ins. Co., 110 Ga. App. 417, 138 S.E.2d 687 (1964); Lacy v. Ferrence, 222 Ga. 635, 151 S.E.2d 763 (1966); Baron Tube Co. v. Transport Ins. Co., 365 F.2d 858 (5th Cir. 1966); United States v. Fort Benning Rifle & Pistol Club, 387 F.2d 884 (5th Cir. 1967); Davis v. U.S. Fid. & Guar. Co., 119 Ga. App. 374, 167 S.E.2d 214 (1969); Shank v. Spruill, 406 F.2d 756 (5th Cir. 1969); Peacock v. Retail Credit Co., 302 F. Supp. 418 (N.D. Ga. 1969); American Credit Corp. v. United States Cas. Co., 49 F.R.D. 314 (N.D. Ga. 1969); Butler v. Cochran, 121 Ga. App. 173, 173 S.E.2d 275 (1970); Veal v. Paulk, 121 Ga. App. 575, 174 S.E.2d 465 (1970); Sublusky v. Fudge, 121 Ga. App. 674, 175 S.E.2d 100 (1970); Peacock v. Retail Credit Co., 429 F.2d 31 (5th Cir. 1970); Shell v. Watts, 125 Ga. App. 542, 188 S.E.2d 269 (1972); Bates v. Metropolitan Transit Sys., 128 Ga. App. 720, 197 S.E.2d 781 (1973); Sosebee v. Steiner, 128 Ga. App. 814, 198 S.E.2d 325 (1973); Montaquila v. Cranford, 129 Ga. App. 787, 201 S.E.2d 335 (1973); Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875, 201 S.E.2d 628 (1973); Heard v. Caldwell, 364 F. Supp. 419 (S.D. Ga. 1973); Gunnells v. Seaboard Airline R.R., 130 Ga. App. 677, 204 S.E.2d 324 (1974); Sims v. American Cas. Co., 131 Ga. App. 461, 206 S.E.2d 121 (1974); Jones v. Hartford Accident & Indem. Co., 132 Ga. App. 130, 207 S.E.2d 613 (1974); Thomas v. Home Credit Co., 133 Ga. App. 602, 211 S.E.2d 626 (1974); Milam v. Mojonnier Bros. Co., 135 Ga. App. 208, 217 S.E.2d 355 (1975); Moulden Supply Co. v. Rojas, 135 Ga. App. 229, 217 S.E.2d 468 (1975); Grier v. Wade Ford, Inc., 135 Ga. App. 821, 219 S.E.2d 43 (1975); Stone v. Ridgeway, 136 Ga. App. 264, 220 S.E.2d 722 (1975); Hudnall v. Kelly, 388 F. Supp. 1352 (N.D. Ga. 1975); Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088 (N.D. Ga. 1975); Watwood v. Barber, 70 F.R.D. 1 (N.D. Ga. 1975); Stoddard v. Woods, 138 Ga. App. 770, 227 S.E.2d 403 (1976); Bailey v. General Apt. Co., 139 Ga. App. 713, 229 S.E.2d 493 (1976); Cornwell v. Williams Bros. Lumber Co., 139 Ga. App. 773, 229 S.E.2d 551 (1976); Independent Mfg. Co. v. Automotive Prods., Inc., 141 Ga. App. 518, 233 S.E.2d 874 (1977); Hemphill v. Congoleum Corp., 142 Ga. App. 83, 234 S.E.2d 859 (1977); Cox Enters., Inc. v. Gilreath, 142 Ga. App. 297, 235 S.E.2d 633 (1977); Webb v. Murphy, 142 Ga. App. 649, 236 S.E.2d 840 (1977); McCane v. Sowinski, 143 Ga. App. 724, 240 S.E.2d 132 (1977); Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80, 240 S.E.2d 284 (1977); Benning Constr. Co. v. Lakeshore Plaza Enters., Inc., 240 Ga. 426, 241 S.E.2d 184 (1977); Cole v. Atlanta Gas Light Co., 144 Ga. App. 575, 241 S.E.2d 462 (1978); Carter v. R.H. Macy Co., 147 Ga. App. 326, 248 S.E.2d 699 (1978); Neel v. Rehberg, 577 F.2d 262 (5th Cir. 1978); Laine v. Wright, 586 F.2d 607 (5th Cir. 1978); Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979); Banks v. Dalbey, 150 Ga. App. 779, 258 S.E.2d 701 (1979); Milton v. Wilkes, 152 Ga. App. 362, 262 S.E.2d 624 (1979); McCoy Enters. v. Vaughn, 154 Ga. App. 471, 268 S.E.2d 764 (1980); Jankowski v. Taylor, 154 Ga. App. 752, 269 S.E.2d 871 (1980); Harp v. Smith, 155 Ga. App. 393, 271 S.E.2d 38 (1980); Deloach v. Emergency Medical Group, 155 Ga. App. 866, 274 S.E.2d 38 (1980); Scoggins v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 408, 274 S.E.2d 775 (1980); Watkins v. Barber-Colman Co., 625 F.2d 714 (5th Cir. 1980); Awbrey v. Great Atl. & Pac. Tea Co., 505 F. Supp. 604 (N.D. Ga. 1980); Farahmand v. Local Properties, Inc., 88 F.R.D. 80 (N.D. Ga. 1980); Leagan v. Levine, 158 Ga. App. 293, 279 S.E.2d 741 (1981); Cunningham v. John J. Harte Assocs., 158 Ga. App. 774, 282 S.E.2d 219 (1981); Commercial Union Ins. Co. v. Wraggs, 159 Ga. App. 596, 284 S.E.2d 19 (1981); McMillian v. City of Rockmart, 653 F.2d 907 (5th Cir. 1981); Lamb v. United States, 526 F. Supp. 1117 (M.D. Ga. 1981); Dowdell v. Sunshine Biscuits, Inc., 90 F.R.D. 107 (M.D. Ga. 1981); Allrid v. Emory Univ., 248 Ga. 588, 285 S.E.2d 521 (1982); Smith v. Deller, 161 Ga. App. 112, 288 S.E.2d 825 (1982); Orr v. Culpepper, 161 Ga. App. 801, 288 S.E.2d 898 (1982); Lavender v. Spetalnick, 161 Ga. App. 75, 289 S.E.2d 291 (1982); Hall v. Answering Serv., Inc., 161 Ga. App. 874, 289 S.E.2d 533 (1982); Ward v. Griffith, 162 Ga. App. 194, 290 S.E.2d 290 (1982); Martin v. Newman, 162 Ga. App. 725, 293 S.E.2d 18 (1982); Hart v. Eldridge, 163 Ga. App. 295, 293 S.E.2d 550 (1982); Morgan v. GMC Trucks, 163 Ga. App. 206, 294 S.E.2d 350 (1982); Deller v. Smith, 250 Ga. 157, 296 S.E.2d 49 (1982); Smith v. Griggs, 164 Ga. App. 15, 296 S.E.2d 87 (1982); Jarmon v. Murphy, 164 Ga. App. 763, 298 S.E.2d 510 (1982); Myers v. Wilson, 167 Ga. App. 340, 306 S.E.2d 401 (1983); Turner v. Evans, 704 F.2d 1212 (11th Cir. 1983); Wagner v. Casey, 169 Ga. App. 500, 313 S.E.2d 756 (1984); Taylor v. Blackwood, 170 Ga. App. 747, 318 S.E.2d 201 (1984); McLendon v. Henry, 170 Ga. App. 876, 318 S.E.2d 742 (1984); Mays v. Hospital Auth., 582 F. Supp. 425 (N.D. Ga. 1984); Echevarria v. Hudgins, 173 Ga. App. 39, 325 S.E.2d 423 (1984); Smith, Miller & Patch v. Lorentzson, 254 Ga. 111, 327 S.E.2d 221 (1985); Wiggins v. Citizens & S. Nat'l Bank, 173 Ga. App. 761, 328 S.E.2d 222 (1985); Jones v. Brown, 174 Ga. App. 632, 331 S.E.2d 24 (1985); Combel v. Wickey, 174 Ga. App. 758, 332 S.E.2d 18 (1985); State Farm Fire & Cas. Co. v. Pace, 176 Ga. App. 737, 337 S.E.2d 401 (1985); Hawthorne v. Wells, 761 F.2d 1514 (11th Cir. 1985); Beaty v. Citizens Bank, 174 Ga. App. 429, 330 S.E.2d 170 (1985); Crites v. Delta Air Lines, 177 Ga. App. 723, 341 S.E.2d 264 (1986)
Negelow v. Mouyal, 178 Ga. App. 53, 342 S.E.2d 14 (1986); Williams v. City of Atlanta, 794 F.2d 624 (11th Cir. 1986); Gaskins v. A.B.C. Drug Co., 183 Ga. App. 518, 359 S.E.2d 364 (1987); Staggs v. Wang, 185 Ga. App. 310, 363 S.E.2d 808 (1987); Bohannon v. Futrell, 189 Ga. App. 340, 375 S.E.2d 637 (1988); Kadel v. Thompson, 84 Bankr. 878 (N.D. Ga. 1988); Day v. Burnett, 189 Ga. App. 905, 377 S.E.2d 734 (1989); Freeman v. City of Brunswick, 193 Ga. App. 635, 388 S.E.2d 746 (1989); Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736 (S.D. Ga. 1989); Carlisle v. Travelers Ins. Co., 195 Ga. App. 21, 392 S.E.2d 344 (1990); McManus v. Sauerhoefer, 197 Ga. App. 114, 397 S.E.2d 715 (1990); Shepard v. Allstate Ins. Co., 198 Ga. App. 144, 400 S.E.2d 682 (1990); Hickey v. Askren, 198 Ga. App. 718, 403 S.E.2d 225 (1991); Heyde v. Xtraman, Inc., 199 Ga. App. 303, 404 S.E.2d 607 (1991); Thomason v. Gold Kist, Inc., 200 Ga. App. 246, 407 S.E.2d 472 (1991); Hyman v. Jordan, 201 Ga. App. 852, 412 S.E.2d 615 (1991); Jones v. Lamon, 206 Ga. App. 842, 426 S.E.2d 657 (1992); Stone v. Radiology Servs., 206 Ga. App. 851, 426 S.E.2d 663 (1992); Buzhardt v. Payton, 210 Ga. App. 67, 435 S.E.2d 280 (1993); Devoe v. Callis, 212 Ga. App. 618, 442 S.E.2d 765 (1994); Potts v. Atlantic S.E. Airlines, 158 F.R.D. 693 (N.D. Ga. 1994); Georgia Farm Bureau Mut. Ins. Co. v. Kilgore, 216 Ga. App. 384, 454 S.E.2d 587 (1995); Harrison v. Digital Equip. Corp., 219 Ga. App. 464, 465 S.E.2d 494 (1995); Vaughn v. Vulcan Materials Co., 266 Ga. 163, 465 S.E.2d 661 (1996); Morris v. Atlanta Legal Aid Soc'y, Inc., 222 Ga. App. 62, 473 S.E.2d 501 (1996); Sletto v. Hospital Auth., 239 Ga. App. 203, 521 S.E.2d 199 (1999); Odum v. Montgomery, 249 Ga. App. 211, 547 S.E.2d 770 (2001); Leal v. Ga. Dep't of Corr., 254 F.3d 1276 (11th Cir. 2001); Luem v. Johnson, 258 Ga. App. 530, 574 S.E.2d 835 (2002); McCandliss v. Cox Enters., 265 Ga. App. 377, 593 S.E.2d 856 (2004); Dep't of Human Res. v. Nation, 265 Ga. App. 434, 594 S.E.2d 383 (2004); Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004); Hart v. Appling County Sch. Bd., 266 Ga. App. 300, 597 S.E.2d 462 (2004); Stephens v. Shields, 271 Ga. App. 141, 608 S.E.2d 736 (2004); Lee v. Kim, 275 Ga. App. 891, 622 S.E.2d 99 (2005); Kelley v. Lymon, 279 Ga. App. 849, 632 S.E.2d 734 (2006); Patterson v. Lopez, 279 Ga. App. 840, 632 S.E.2d 736 (2006); Rockdale Health Sys. v. Holder, 280 Ga. App. 298, 640 S.E.2d 52 (2006); Steed v. Wellington Healthcare Servs., LLC, 285 Ga. App. 446, 646 S.E.2d 517 (2007); In re Carter, 288 Ga. App. 276, 653 S.E.2d 860 (2007); Chisolm v. Tippens, 289 Ga. App. 757, 658 S.E.2d 147 (2008); Doss v. City of Savannah, 290 Ga. App. 670, 660 S.E.2d 457 (2008); Akuoko v. Martin, 298 Ga. App. 364, 680 S.E.2d 471 (2009); Rosenberg v. Falling Water, Inc., 302 Ga. App. 78, 690 S.E.2d 183 (2009), aff'd, No. S10G0877, 2011 Ga. LEXIS 249 (Ga. 2011); Robinson v. Boyd, 288 Ga. 53, 701 S.E.2d 165 (2010); Williams v. Cobb County Farm Bureau, Inc., 312 Ga. App. 350, 718 S.E.2d 540 (2011); Gottschalk v. Woods, 329 Ga. App. 730, 766 S.E.2d 130 (2014); Burroughs v. Georgia Ports Authority, 339 Ga. App. 294, 793 S.E.2d 538 (2016); Zephaniah v. Ga. Clinic, P.C., 350 Ga. App. 408, 829 S.E.2d 448 (2019); Smith v. Brooks, 354 Ga. App. 78, 840 S.E.2d 156 (2020).
Injuries to Person
Two-year limitation of action for wrongful death is public policy of this state, which bars institution of such litigation after lapse of this period; this period cannot be extended by legislatures of foreign states. Taylor v. Murray, 231 Ga. 852, 204 S.E.2d 747 (1974).
Injury to person is injury to physical body of the person. Dalrymple v. Brunswick Coca-Cola Bottling Co., 51 Ga. App. 754, 181 S.E. 597 (1935).
Personal injuries are not confined to injuries to body. Hutcherson v. Durden, 113 Ga. 987, 39 S.E. 495, 54 L.R.A. 811 (1901).
Personal injuries include all actionable injuries to individual.- Injuries to the person, within meaning of this section, are not confined to physical injuries, but rather to all actionable injuries to the individual personally, as distinguished from injuries to the individual's property or property rights. Carter v. Seaboard Coast Line R.R., 392 F. Supp. 494 (S.D. Ga. 1974).
Phrase "injuries to the person" includes not only injuries to physical body, but every other injury for which an action may be brought done to the individual and not to the individual's property; pain and suffering, medical expenses, and lost earnings are part of injury to the person. Sharpe v. Seaboard Coast Line R.R., 528 F.2d 546 (5th Cir. 1976).
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).
Bivens action.
- Two-year period of limitations set forth in O.C.G.A. § 9-3-33 applies to a so-called Bivens action alleging conduct by federal agents in violation of a person's constitutional rights. S.W. Daniel, Inc. v. Urrea, 715 F. Supp. 1082 (N.D. Ga. 1989).
Monetary loss or damage resulting from injury must be recovered within two years, not four. Leggett v. Benton Bros. Drayage & Storage Co., 138 Ga. App. 761, 227 S.E.2d 397 (1976).
Injury to one's health is an injury to the person, as are any resulting monetary damages. Dalrymple v. Brunswick Coca-Cola Bottling Co., 51 Ga. App. 754, 181 S.E. 597 (1935).
Claim for injury to earning capacity is claim for injury to the person, and therefore the statute of limitation is two years. Leggett v. Benton Bros. Drayage & Storage Co., 138 Ga. App. 761, 227 S.E.2d 397 (1976).
Applicable statute of limitation for lost wages arising out of personal injury done to the plaintiff is two years. Leggett v. Benton Bros. Drayage & Storage Co., 138 Ga. App. 761, 227 S.E.2d 397 (1976).
Battery resulting from unauthorized operation.
- Statute of limitations for battery resulting from an unauthorized operation is the two-year statute of limitations for injuries to the person and the four-year statute of limitations for loss of consortium. Gowen v. Carpenter, 189 Ga. App. 477, 376 S.E.2d 384 (1988); Gowen v. Cady, 189 Ga. App. 473, 376 S.E.2d 390, cert. denied, 189 Ga. App. 912, 376 S.E.2d 390 (1988).
Civil rights actions.- Two-year limitation in actions for injuries to persons is applicable to civil rights actions. Jones v. Bales, 58 F.R.D. 453 (N.D. Ga. 1972), aff'd, 480 F.2d 805 (5th Cir. 1973).
Invasion of privacy claim was governed by the two-year statute of limitation for injury to the person, and not by the one-year statute of limitation for injury to reputation. Hudson v. Montcalm Publishing Corp., 190 Ga. App. 629, 379 S.E.2d 572, cert. denied, 190 Ga. App. 898, 379 S.E.2d 572 (1989).
Invasion of privacy and intrusion on seclusion claims were untimely as to a program that was activated on the plaintiffs' computer more than two years before the complaint was filed. As to other alleged conduct, a voluntarily dismissed class action did not toll a subsequent class action based on the same conduct, and Georgia law did not apply to information allegedly gathered outside Georgia. Krise v. Sei/Aaron's, Inc., F. Supp. 2d (N.D. Ga. Aug. 18, 2017).
Federal civil rights actions.
- O.C.G.A. § 9-3-33 provides a two-year limitations period for "actions for injuries to the person," and is the statute of limitations that applies to 42 U.S.C. § 1983 actions heard by federal district courts sitting in Georgia. Sadiqq v. Bramlett, 559 F. Supp. 362 (N.D. Ga. 1983).
Since the federal civil rights statute, 42 U.S.C. § 1983, does not contain its own statute of limitations, it is well settled that the period of limitations to be used is the most analogous one provided by state law. The applicable limitations period for first amendment and due process claims is not the six-month period provided by O.C.G.A. § 45-19-36 for filing an administrative complaint for unlawful discrimination committed by a public employer; the most analogous limitations period provided by Georgia law for these claims appears to be either the one provided by O.C.G.A. § 9-3-22 (enforcement of statutory rights) or the one provided by O.C.G.A. § 9-3-33 (injuries to person or reputation). Cook v. Ashmore, 579 F. Supp. 78 (N.D. Ga. 1984).
Georgia's two year limitations period for actions for injuries to the person (including wrongful death) is also applicable to plaintiff's claims under 42 U.S.C. § 1983. Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986).
Proper limitations period for all federal civil rights actions under 42 U.S.C. § 1983 in Georgia is the two-year limitations period set forth in O.C.G.A. § 9-3-33. Mullinax v. McElhenney, 817 F.2d 711 (11th Cir. 1987).
Two-year limitation set forth in O.C.G.A. § 9-3-33 applies to an action under 42 U.S.C. § 1983. Byrd v. City of Atlanta, 683 F. Supp. 804 (N.D. Ga. 1988).
Two-year personal injury limitations period applied to a claim against the state and a county alleging racial discrimination in the siting and permitting of a solid waste landfill under 42 U.S.C. §§ 1983, 1985 and 2000d. Rozar v. Mullis, 85 F.3d 556 (11th Cir. 1996).
Georgia Tort Claims Act does not expand the state's exposure for federal civil rights actions beyond that provided in O.C.G.A. § 9-3-33. Doe #102 v. Department of Cors., 268 Ga. 582, 492 S.E.2d 516 (1997), cert. denied, 523 U.S. 1047, 118 S. Ct. 1363, 140 L. Ed. 2d 512 (1998).
Employment discrimination action under 42 U.S.C. § 1981 was time-barred because the last discriminatory act did not occur within two years of the date plaintiff filed the complaint. Welch v. Delta Air Lines, 978 F. Supp. 1133 (N.D. Ga. 1997).
Parent's intervention in an action under 42 U.S.C. § 1983 for damages for the wrongful death of a child was barred because the parent filed the parent's motion more than two years after the parent's cause of action accrued. Miracle by Miracle v. Spooner, 978 F. Supp. 1161 (N.D. Ga. 1997).
Relation back of civil rights claim based on alleged conspiracy between defendants and judge.
- Federal civil rights claim grounded on allegations of a malicious conspiracy between the defendants and the judge who issued a restraining order, brought three years after the accrual of the cause of action and after the original claim for breach of contract, tortious interference with contractual rights, and indemnity, did not relate back and was barred by the statute of limitations. Henson v. American Family Corp., 171 Ga. App. 724, 321 S.E.2d 205 (1984).
Tortious communication of disease, such as tuberculosis of the lungs, by one person to another by causing an individual to work with a person suffering from the disease, is an injury to the person, and any monetary loss or damages flowing therefrom are recoverable as damages flowing from an injury to the person; hence, right of action accrues immediately upon communication of the disease. Dalrymple v. Brunswick Coca-Cola Bottling Co., 51 Ga. App. 754, 181 S.E. 597 (1935).
Action for damages brought by administrator under former Code 1933, §§ 105-1309 and 105-1310 (see now O.C.G.A. § 51-4-5) to recover for benefit of dependent next of kin of deceased is action for injury done to the person, and must be brought within two-year period of limitation prescribed by former Code 1933, § 3-1004 (see now O.C.G.A. § 9-3-33). Patellis v. King, 52 Ga. App. 118, 182 S.E. 808 (1935).
Malicious notice of intent to sue.
- When the defendant maliciously sent the plaintiff, who did not owe it anything, notice of intention to sue in June, 1937, thereby frightening the plaintiff, making the plaintiff nervous, and causing a nervous breakdown which was completed in September, 1939, resulting in permanent impairment of the plaintiff's health, and action was not brought until June, 1941, cause of action, if any, was barred by the statute of limitations. Fraser v. Atlanta Title & Trust Co., 66 Ga. App. 630, 19 S.E.2d 38 (1942).
Malicious prosecution, abuse of process, and false arrest and imprisonment.
- Actions for malicious prosecution, malicious abuse of legal process, for false arrest or false imprisonment, or for malicious use of civil process are all actions for damages for injuries to the person of the party complainant, and under this section are not barred until two years after they arise. McCullough v. Atlantic Ref. Co., 50 Ga. App. 237, 177 S.E. 601 (1934), rev'd on other grounds, 181 Ga. 502, 182 S.E. 898 (1935) (see now O.C.G.A. § 9-3-33).
Action for malicious use of civil process is action for injury to the person, rather than one for injury to the reputation, and therefore is not barred under this section until two years after the cause of action accrues. Securities Inv. Co. v. Bennett, 117 Ga. App. 415, 160 S.E.2d 602 (1968).
Action filed by administrator for damages from malicious arrest and prosecution of intestate is subject to two year statute of limitation in this section. Nevels v. Detroiter Mobile Homes, 124 Ga. App. 112, 183 S.E.2d 77 (1971).
False imprisonment is injury to the person that must be brought within two years of release from imprisonment. Meyers v. Glover, 152 Ga. App. 679, 263 S.E.2d 539 (1979).
Statute of limitation for malicious prosecution is two years. Brown v. Quarles, 154 Ga. App. 350, 268 S.E.2d 403 (1980).
Suit for malicious prosecution must be brought within two years after the underlying criminal prosecution is ended in plaintiff's favor. Daniel v. Georgia R.R. Bank & Trust Co., 255 Ga. 29, 334 S.E.2d 659 (1985).
Malicious prosecution action resulting from incarceration on warrants charging the plaintiff with writing bad checks accrued when the statute of limitations on the criminal charges expired without the plaintiff having been prosecuted, not when the warrants were "dismissed" by the district attorney's office. Banta v. Quik-Thrift Food Stores, Inc., 187 Ga. App. 250, 370 S.E.2d 3 (1988).
Action for false imprisonment must be brought within two years of its accrual, which is from the release from imprisonment. Reese v. Clayton County, 185 Ga. App. 207, 363 S.E.2d 618 (1987); Campbell v. Hyatt Regency, 193 Ga. App. 542, 388 S.E.2d 341 (1989).
False imprisonment is an intentional tort. The action must be brought within two years of its accrual, which is from the release from imprisonment. Collier v. Evans, 199 Ga. App. 763, 406 S.E.2d 90 (1991).
Plaintiffs' malicious prosecution claim was not time barred by the applicable two-year statute of limitations because that claim did not accrue until the charges against the plaintiffs were dropped, which was within the two-year limitations period; the plaintiffs' claim for false imprisonment was time barred because the plaintiffs were no longer falsely imprisoned after the defendants obtained an arrest warrant, which was more than two years prior to the plaintiffs filing their complaint, and the plaintiffs did not suffer a continuing tort of false imprisonment once the plaintiffs were held pursuant to the warrant. Black v. Wigington, F. Supp. 2d (N.D. Ga. Feb. 4, 2015), aff'd in part and rev'd on other grounds, 811 F.3d 1259 (11th Cir. Ga. 2016).
Plaintiff's false arrest complaint against the defendants, an officer and a city, was untimely because the plaintiff's claim for false arrest accrued on May 18, 2011, which was when a magistrate judge reviewed the plaintiff's charges to fix the amount of the bond and the plaintiff was released on bail, the plaintiff had two years from May 18, 2011, when the plaintiff started being held pursuant to legal process, to commence an action for false arrest, and the plaintiff waited more than two years, until July 19, 2013, to file the complaint. White v. Hiers, F.3d (11th Cir. June 9, 2016)(Unpublished).
Abusive litigation.
- In a suit seeking damages for abusive litigation, when the action complained of was reduced to judgment in 1984, and the instant action was not filed until 1988, the trial court correctly found that the action for abusive litigation was time barred. Walker v. McLarty, 199 Ga. App. 460, 405 S.E.2d 294, cert. denied, 199 Ga. App. 907, 405 S.E.2d 294 (1991). But see Graves v. State, 269 Ga. 772, 504 S.E.2d 679 (1998), overruled on other grounds, Jones v. State, 272 Ga. 900, 537 S.E.2d 80 (2000), reversing Graves v. State, 227 Ga. App. 628, 490 S.E.2d 111 (1997).
Interference with right to testify.- Action for recovery of damages for interference with the plaintiff's right to testify as witness is one for injuries to the person and must be commenced within two years of alleged interference. Carter v. Seaboard Coast Line R.R., 392 F. Supp. 494 (S.D. Ga. 1974).
Wrongful death.
- Action for damages for homicide instituted by administrator of deceased to recover for benefit of dependent brother of deceased is an action for injury done to the person, and must be brought within two years from time of injury. King v. Patellis, 181 Ga. 157, 181 S.E. 667 (1935).
Action by wife to recover damages for negligent homicide of husband is action for injury done to the person, and must be brought within two years after the date of the husband's death. Ivester v. Southern Ry., 61 Ga. App. 364, 6 S.E.2d 214 (1939); Odom v. Atlanta & W.P.R.R., 208 Ga. 45, 64 S.E.2d 889 (1951).
Uninsured motorist case.
- Trial court erroneously dismissed the insured party's uninsured motorist action against the insurer; the insured party, by attempting service twice, showed due diligence under O.C.G.A. § 33-7-11(e) in determining that the defendant, who allegedly struck the insured party, had either departed from the state or could not, after due diligence, be found within the state, and the insured party made all three requests for service by publication before the statute of limitations under O.C.G.A. § 9-3-33 expired, and the latter two requests were pending for decision by the trial court for more than three months in violation of O.C.G.A. § 15-6-21(b). Luca v. State Farm Mut. Auto. Ins. Co., 281 Ga. App. 658, 637 S.E.2d 86 (2006).
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 limitation 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).
Injuries due to seller's negligence.- This section is applicable when personal injuries arise due to the seller's negligence. Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088 (N.D. Ga. 1975).
When cause of action for medical malpractice arose prior to July 1, 1977, O.C.G.A. § 9-3-33 applied rather than O.C.G.A. § 9-3-71. Morgan v. Carter, 157 Ga. App. 218, 276 S.E.2d 889 (1981).
This section does not apply when action against common carrier is upon contract to safely carry even though breach alleged resulted in injuries to the person for which damages are sought to be recovered. Patterson v. Augusta & S.R.R., 94 Ga. 140, 21 S.E. 283 (1894).
Pregnancy as injury in negligent sterilization action.
- After the mother sued a doctor for alleged negligent sterilization, the pregnancy was the injury, and the general tort statute of limitations did not begin to run until the occurrence of this injury. Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155 (1984).
Applies to action on theory of strict liability.
- There is no reason to differentiate between actions for personal injuries brought under a theory of strict liability as opposed to negligence for purposes of applying O.C.G.A. § 9-3-33. Since O.C.G.A. § 51-1-11(b) must be strictly construed, the 1978 amendment thereof, which provides that strict product liability actions must be brought within ten years from sale or use, was not intended to preclude the application of a general statute of limitations, such as § 9-3-33, which would otherwise apply, or to suggest that no general statute of limitations applied to strict products liability actions under § 51-1-11(b) prior to the 1978 amendment. Daniel v. American Optical Corp., 251 Ga. 166, 304 S.E.2d 383 (1983).
Time of discovery of injury caused by intrauterine device.
- In an action brought against the manufacturer of an intrauterine device by a user for personal injuries sustained, a genuine issue of material fact existed as to when the user knew or with reasonable diligence should have discovered the causal relationship between her injuries and the manufacturer's alleged misconduct, so a federal district court erred in granting summary judgment for the manufacturer on the ground that the action was barred by O.C.G.A. § 9-3-33. Ballew v. A.H. Robins Co., 688 F.2d 1325 (11th Cir. 1982).
Recording of telephone conversations.
- Two-year statute of limitations applicable to injuries to the person, rather than four-year limitation applicable to property damage, is applied to cause of action for invasion of privacy arising out of recordings of telephone conversations. Jones v. Hudgins, 163 Ga. App. 793, 295 S.E.2d 119 (1982).
Medical expenses constitute damage flowing from personal injury, and are thus subject to the two-year limitation period for personal injury claims set forth in O.C.G.A. § 9-3-33; to hold otherwise would enable litigants to circumvent the limitation period for personal injuries by declaring that the damages being sought constituted property claims. Epps v. Hin, 255 Ga. App. 370, 565 S.E.2d 577 (2002).
Intentional termination of life support a wrongful death claim, not a malpractice claim.
- Trial court properly refused to dismiss a plaintiff's claim asserting tortious termination of life support based on the defendant's argument that it was really a medical malpractice claim and, therefore, required an expert medical affidavit under O.C.G.A. § 9-11-9.1; because such a claim is a suit for wrongful death, not medical malpractice, no expert medical affidavit was necessary. 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).
Because the four-year time limit does not apply to loss of consortium claims arising out of medical malpractice, and the plaintiffs only have two years in which to file the plaintiffs' claims for loss of consortium arising out of medical malpractice, the spouse's loss of consortium claim was time barred as the claim was filed more than two years after the patient's injury. Beamon v. Mahadevan, 329 Ga. App. 685, 766 S.E.2d 98 (2014).
Dental malpractice.
- Trial court erred by granting a dentist summary judgment in a dental malpractice suit as being filed outside the two-year limitations period because the court erred by ruling that the patient's consultation with an oral surgeon working with the dentist ended the tolling caused by the dentist's fraudulent concealment of the cause of action. MacDowell v. Gallant, 323 Ga. App. 61, 744 S.E.2d 836 (2013).
Injuries to Reputation
Actions for injuries to reputation must be brought within one year from date of alleged defamatory acts, regardless of whether or not the plaintiff had knowledge of act or acts at the time of their occurrence. Davis v. Hospital Auth., 154 Ga. App. 654, 269 S.E.2d 867 (1980); Jacobs v. Shaw, 219 Ga. App. 425, 465 S.E.2d 460 (1995); Lively v. McDaniel, 240 Ga. App. 132, 522 S.E.2d 711 (1999).
Since actions for injuries to the reputation must be brought within one year from the date of the alleged defamation, regardless of whether or not the plaintiff had knowledge of the act at the time of its occurrence, summary judgment was correctly granted against the plaintiff when the complaint was not filed until more than one year after the incident. Brewer v. Schacht, 235 Ga. App. 313, 509 S.E.2d 378 (1998).
Conspiracy to defame action against a police officer was properly dismissed on statute of limitations grounds as: (1) under O.C.G.A. § 51-5-3, a libel was published as soon as it was communicated, and the claim accrued no later than the date of the officer's last communication with the newspaper defendants; (2) there was no evidence that the officer directed or procured the reporters to record and publish the officer's comments; (3) under O.C.G.A. § 9-3-33, a party had one year from the date that a slanderous statement was uttered or published to bring suit; (4) case law did not support the teenager's claim that the limitation period for conspiracy to defame ran from the date of the publication of the articles; and (5) an invasion of privacy claim was not an injury to the teenager's person and was not subject to the two-year limitation period in O.C.G.A. § 9-3-33 since the interest protected was clearly that of reputation. Torrance v. Morris Publ'g Group, LLC, 281 Ga. App. 563, 636 S.E.2d 740 (2006), cert. denied, 2007 Ga. LEXIS 160 (Ga. 2007).
Trial court did not err in entering judgment in favor of a company on a debtor's libel claim because the debtor's claim was untimely under O.C.G.A. § 9-3-33; the debtor's libel claim was based upon the company's allegations in a deficiency claim against the debtor, which was filed in January 2007, and the company's subsequent failure to dismiss the claim after the debt was discharged in bankruptcy in March 2008, and the debtor first asserted the claim in September 2009. Sevostiyanova v. Tempest Recovery Servs., 307 Ga. App. 868, 705 S.E.2d 878 (2011).
Day of receipt, not day of writing, controls.- Action for defamation occurred when a letter containing allegedly defamatory statements was received, not when the letter was written. Clark v. Clark, 969 F. Supp. 1319 (S.D. Ga. 1997).
Claim for slander or conspiracy to slander, whether for personal damage or damage to a business reputation, remained a claim for injury to reputation, subject to the one-year statute of limitation. Barnwell v. Barnett & Co., 222 Ga. App. 694, 476 S.E.2d 1 (1996).
Accrual of right.
- As to allegation of public disclosure resulting in injury to reputation, right of action for injury to reputation accrues when act by which reputation is injured occurs. Jones v. Hudgins, 163 Ga. App. 793, 295 S.E.2d 119 (1982).
Claims for slander, libel, and conspiracy to libel and slander involve injuries to the reputation, not injuries to the person, and are subject to the one-year statute of limitation. Lee v. Gore, 221 Ga. App. 632, 472 S.E.2d 164 (1996).
One asphalt testing company was entitled to summary judgment as to a defamation claim because the claim was barred by the limitations period of O.C.G.A. § 9-3-33 and the characterization of the claim as one for "injurious falsehood" was not a viable claim in that plaintiffs failed to plead special damages. Douglas Asphalt Co. v. Qore, Inc., F. Supp. 2d (S.D. Ga. Feb. 13, 2009).
Admissibility of statements otherwise not actionable as defamation.
- In an action by a former employee against an employer for defamation and invasion of privacy, statements made more than one year before suit was filed were not actionable as defamation, but the statements might be admissible to explain the underlying circumstances and defamatory nature of an announcement of plaintiff's termination made less than one year before the suit. Zielinski v. Clorox Co., 215 Ga. App. 97, 450 S.E.2d 222 (1994).
Wrongful dishonor of checks.
- Action for wrongful dishonor of checks sounds in tort, and the statute of limitations for a wrongful dishonor claim would certainly be no greater than two years and quite possibly no greater than one year. Associated Writers Guild of Am., Inc. v. First Nat'l Bank, 195 Ga. App. 820, 395 S.E.2d 23 (1990).
Ignorance of commission of libel will not toll this section. Irvin v. Bentley, 18 Ga. App. 662, 90 S.E. 359 (1916).
Claim for defamation barred.
- Former employee's defamation claim was barred by the statute of limitations because the claim was filed more than one year after the challenged action occurred. Garcia v. Shaw Indus., Inc., 321 Ga. App. 48, 741 S.E.2d 285 (2013).
Claim for Damage to Reputation BarredDebtor's claim for reputation damages resulting from a wrongful foreclosure was time barred because the claim was brought more than one year after the date of the foreclosure and, even if an allegedly evasive answer by the lender's counsel was enough to warrant an equitable tolling, it was not enough to resurrect a limitations period that had already run. McDaniel v. SunTrust Bank (In re McDaniel), 523 Bankr. 895 (Bankr. M.D. Ga. 2014).
Loss of Consortium
Four year limitation for claims for loss of consortium is an exception, and additional claims not specifically excepted in this section are not excepted by virtue of having been brought in conjunction with an excepted claim. Central of Ga. Ry. v. Harbin, 132 Ga. App. 65, 207 S.E.2d 597 (1974).
Claim for loss of consortium does not extend the period during which damages may be asserted for physical injuries to the person. Branton v. Draper Corp., 185 Ga. App. 820, 366 S.E.2d 206 (1988).
Statute of limitations and loss of consortium claim.
- Trial court erred in granting the defendant's motion for summary judgment on the loss of consortium claims based on expiration of the statute of limitation, when the statute of limitation had not yet expired on the plaintiffs' loss of consortium claims. Babb v. Cook, 203 Ga. App. 437, 417 S.E.2d 63 (1992), overruled on other grounds, Farrie v. McCall, 256 Ga. App. 446, 568 S.E.2d 603 (2002).
Running of the statute of limitations period for a personal injury claim does not bar a derivative loss of consortium claim. Whitten v. Richards, 240 Ga. App. 719, 523 S.E.2d 906 (1999); Epps v. Hin, 255 Ga. App. 370, 565 S.E.2d 577 (2002).
Since the patient and husband did not plead a loss of consortium claim in their original complaint filed against the psychologist and clinic, and since the statute of limitation for that cause of action had expired by the time the patient's and husband's refiled complaint was filed, the loss of consortium claim was time barred. Blier v. Greene, 263 Ga. App. 35, 587 S.E.2d 190 (2003).
Because a husband and wife failed to show what efforts they took in exercising due diligence in serving a driver close to the running of the relevant statute of limitations under O.C.G.A. § 9-3-33, their personal injury claim was properly dismissed, but the wife's loss of consortium claim survived. Parker v. Silviano, 284 Ga. App. 278, 643 S.E.2d 819 (2007).
Running of Limitations
Section runs from accrual of right of action.
- Point from which statute of limitations began to run under former Code 1933, § 3-1004, (see now O.C.G.A. § 9-3-33) was when right of action accrued, not when the act or omission occurred, as would be the case under Ga. L. 1976, p. 1363, § 1 (see now O.C.G.A. § 9-3-71). Simons v. Conn, 151 Ga. App. 525, 260 S.E.2d 402 (1979).
Test to be applied in determining when the statute of limitations begins to run against an action sounding in tort is in whether the act causing the damage is in and of itself an invasion of some right of the plaintiff, and thus constitutes a legal injury and gives rise to a cause of action. If the act is of itself not unlawful in this sense, and a recovery is sought only on account of damage subsequently accruing from and consequent upon the act, the cause of action accrues and the statute begins to run only when the damage is sustained; but if the act causing such subsequent damage is of itself unlawful in the sense that it constitutes a legal injury to the plaintiff, and is thus a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, however slight the actual damage then may be. Fox v. Ravinia Club, Inc., 202 Ga. App. 260, 414 S.E.2d 243 (1991), cert. denied, 202 Ga. App. 906, 414 S.E.2d 243 (1992).
Plaintiff's claims for personal injuries were in excess of two years old and therefore barred by O.C.G.A. § 9-3-33. Although the plaintiff cannot specify when the medical condition appeared, the plaintiff possessed sufficient information during the pendency of the two prior cases to have notice of the claim for personal injury asserted in this action. Newton v. Southern Wood Piedmont Co., 163 F.R.D. 625 (S.D. Ga. 1995), aff'd without op., 95 F.3d 59 (11th Cir. 1996).
Businessman's Bivens action against a former Drug Enforcement Agency (DEA) researcher, in which the business alleged a violation of rights under U.S. Const., amend. 4 and 5 rights, was time barred under O.C.G.A. § 9-3-33 because the businessman's suit was filed more than two years after the researcher was indicted for leaking DEA records about the businessman to a newspaper; in accordance with the federal discovery rule, the claims accrued when the indictment issued, as the indictment, coupled with information that the businessman already possessed about the researcher's involvement, gave the businessman constructive knowledge of the researcher's involvement. Ashcroft v. Randel, 391 F. Supp. 2d 1214 (N.D. Ga. 2005).
In an inmate's 42 U.S.C. § 1983 suit asserting violations of the inmate's U.S. Const., amend. 1 rights due to the withholding of some of the inmate's mail, the prison employees, on the basis of the two-year limitations period in O.C.G.A. § 9-3-33, were entitled to summary judgment as to those claims that were based on incidents that occurred more than two years before the inmate filed suit; the prison employees' content-based denial of publications that were sent to the inmate constituted discrete acts that triggered the limitations period at the time each act occurred, rather than constituting a continuing violation. Daker v. Ferrero, 506 F. Supp. 2d 1295 (N.D. Ga. 2007).
Content-based denial of a publication to an inmate and the failure to provide an adequate post-denial procedure are both discrete acts that trigger the two-year limitations period in O.C.G.A. § 9-3-33 with regard to the inmate's 42 U.S.C. § 1983 claims. Daker v. Ferrero, 506 F. Supp. 2d 1295 (N.D. Ga. 2007).
All of a former public employee's 42 U.S.C. § 1983 federal claims were barred by the two-year statute of limitations, under O.C.G.A. § 9-3-33 because: (1) to the extent that the employee raised a substantive due process claim based on a property interest in continued employment with the employer, the employee knew of all of the relevant facts as to that claim when the employee resigned on March 5, 2007; (2) as to the employee's claims that the employee's reputation was damaged in violation of the employee's due process rights and that the employee was entitled to a name clearing hearing, the employee was aware of all of the relevant facts, at the latest, on January 25, 2008, by which time the employee knew of the termination letter and disciplinary action recommendation form; (3) the employee's argument that the employee was unaware that the employee was actually terminated until 2009 was without merit because the employee resigned in lieu of termination; and (4) the employee's constructive discharge claim was untimely because the employee was aware of the circumstances surrounding the employee's resignation as of March 5, 2007, the date that the employee resigned. Bell v. Metro. Atlanta RTA, F.3d (11th Cir. June 7, 2013)(Unpublished).
Changes made in 2013 were not substantial changes to Georgia's execution protocol and the defendant's method-of-execution claim accrued in October 2001 and must have been filed by October 2003 to be timely; the defendant's federal complaint challenging lethal injection, filed on May 12, 2017, was over ten years too late. Ledford v. Comm'r, Ga. Dep't of Corr., 856 F.3d 1312 (11th Cir. 2017).
No tolling despite handicapped and disabled plaintiffs.
- 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 provided for in O.C.G.A. § 9-3-33 had expired as parents, as next friends for the children, had filed suit on a specific date against the school district and such date barred the subsequent, later filing of a complaint against the superintendent after the statute of limitations period had expired. Harper v. Patterson, 270 Ga. App. 437, 606 S.E.2d 887 (2004).
Using mental incapacity to toll statute of limitations.- 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).
Notice to a municipality.
- Trial court erred by dismissing an arrestee's suit against a city alleging false arrest and other claims as being time-barred for not being filed within the two-year limitation period established in O.C.G.A. § 9-3-33, because the arrestee established that the arrestee had provided a timely ante litem notice, pursuant to O.C.G.A. § 36-33-5(b), to the city and had properly included evidence of the notice in the record as an exhibit to the appellate brief. Simon v. City of Atlanta, 287 Ga. App. 119, 650 S.E.2d 783 (2007).
Fraudulent concealment.
- Claim for fraudulent concealment had to be asserted within two years of October 2002 in order to not be barred by the two-year statute of limitations in O.C.G.A. § 9-3-33. Therefore, since the concealment claim was not asserted until a January 2005 due process hearing request was filed, then the concealment claim was time-barred, and the school board's motion to dismiss was properly granted. Dekalb County Sch. Dist. v. J.W.M., 445 F. Supp. 2d 1371 (N.D. Ga. 2006).
When could plaintiff maintain action to successful result.- When question is raised as to whether action is barred by statute of limitations, true test to determine when cause of action accrued is to ascertain time when the plaintiff could first have maintained action to a successful result. Cheney v. Syntex Labs., Inc., 277 F. Supp. 386 (N.D. Ga. 1967).
True test to determine when cause of action has accrued is to ascertain time when the plaintiff could first maintain an action to a successful result. Crawford v. McDonald, 125 Ga. App. 289, 187 S.E.2d 542 (1972); Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088 (N.D. Ga. 1975).
If act causing subsequent damage is of itself unlawful, in sense that it constitutes legal injury to the plaintiff and is thus a completed wrong, a cause of action accrues and the statute begins to run from the time act is committed, however slight the actual damage then may be. Barrett v. Jackson, 44 Ga. App. 611, 162 S.E. 308 (1932); Fraser v. Atlanta Title & Trust Co., 66 Ga. App. 630, 19 S.E.2d 38 (1942).
Test to be applied in determining when statute of limitations begins to run against an action sounding in tort is whether an act causing damage is in and of itself an invasion of some right of the plaintiff, and thus constitutes legal injury and gives rise to the cause of action. Barrett v. Jackson, 44 Ga. App. 611, 162 S.E. 308 (1932); Fraser v. Atlanta Title & Trust Co., 66 Ga. App. 630, 19 S.E.2d 38 (1942).
If act is of itself not unlawful, and recovery is sought only on account of damage subsequently accruing from and consequent upon such act, a cause of action accrues and the statute begins to run only when damage is sustained. Barrett v. Jackson, 44 Ga. App. 611, 162 S.E. 308 (1932); Fraser v. Atlanta Title & Trust Co., 66 Ga. App. 630, 19 S.E.2d 38 (1942).
Running of statute from date of tortious conduct.
- Statute of limitation begins to run on date of tortious conduct, and continues to run until its running effects a bar to any action based upon that misconduct. Rakestraw v. Berenson, 153 Ga. App. 513, 266 S.E.2d 249 (1980).
Running of period in tort claim.
- Trial court did not err in granting defendants' motions for summary judgment on the tort claim; the appellant testified in deposition that the last occurrence of the alleged sexual abuse was on April 30, 1990, and the suit was filed November 3, 1992; this suit was not brought within two years after the cause of action accrued. Long v. Marino, 212 Ga. App. 113, 441 S.E.2d 475 (1994).
Tort claims against a church and conference arising out of a sexual relationship between the plaintiff and a minister were time barred because the claims against the minister were not filed until three years after the minister left the church and there was insufficient evidence of the plaintiff's incompetency to toll the running of the statute. Alpharetta First United Methodist Church v. Stewart, 221 Ga. App. 748, 472 S.E.2d 532 (1996).
Because a customer did not file a 42 U.S.C. § 1981 racial discrimination claim against the restaurant owner until over three years after the incident, the claims asserted in an individual capacity were time-barred by O.C.G.A. § 9-3-33. Higginbotham v. E.H., Inc., F. Supp. 2d (S.D. Ga. Oct. 20, 2005).
Because the two-year statute of limitations under either O.C.G.A. § 9-3-33, the personal injury statute, or O.C.G.A. § 9-3-71, the medical malpractice statute, ran on the claims of negligence asserted by the plaintiffs against a veterinarian based on the death of the plaintiffs' pet kitten, the trial court properly granted the veterinarian's motion for summary judgment as to those claims. Langley v. Shannon, 278 Ga. App. 173, 628 S.E.2d 608 (2006).
Trial court's denial of summary judgment to a hotel limited liability corporation (LLC) in a personal injury action by an injured patron was error, as the action was originally brought against a different entity, the patron attempted to add the LLC and then dismissed that action and brought a new action after expiration of the limitations period under O.C.G.A. § 9-3-33 against the LLC based on the renewal statute pursuant to O.C.G.A. § 9-2-61, but the patron never sought or obtained court permission to add the LLC as a party, as required by O.C.G.A. §§ 9-11-15(a) and9-11-21; as the amendment to add the LLC was more than a correction of a misnomer because the two named defendants were separate entities, O.C.G.A. § 9-11-10(a) was inapplicable and leave of court was required in order to add the LLC. Valdosta Hotel Props., LLC v. White, 278 Ga. App. 206, 628 S.E.2d 642 (2006).
Trial court's dismissal of a driver's negligence lawsuit filed against an insured's insurer did not deprive the driver of any Seventh Amendment right to a jury trial or right of access to the courts under Ga. Const. 1983, Art. I, Sec. I, Para. XII, given that the Seventh Amendment did not apply to suits in state courts and Ga. Const. 1983, Art. I, Sec. I, Para. XII dealt with a litigant's choice of either self-representation or representation by counsel, not access to the courts; however, the driver's action was properly dismissed as time-barred under O.C.G.A. § 9-3-33. Crane v. Lazaro, 281 Ga. App. 127, 635 S.E.2d 319 (2006), cert. denied, 2006 Ga. LEXIS 907 (Ga. 2006); cert. dismissed, mot. denied, 549 U.S. 1200, 127 S. Ct. 1278, 167 L. Ed. 2d 69 (2007).
Because a personal injury plaintiff failed to file an action against an uninsured/underinsured motorist insurer within the applicable statutory period, and the action was not subject to renewal, as the magistrate court's determined that service was made by an unauthorized person, thus rendering the original action void, the insurer was entitled to dismissal. Lewis v. Waller, 282 Ga. App. 8, 637 S.E.2d 505 (2006).
Child's tort claims against a parent for alleged child abuse were time-barred by O.C.G.A. § 9-3-33; a continuing tort theory did not apply to the child's post-traumatic stress disorder claim because even if the child had not discovered the full impact of the alleged harm until nearly 27 years after the injury, the child's exposure to the alleged acts ceased over two years before the child filed suit. Kirkland v. Kirkland, 285 Ga. App. 238, 645 S.E.2d 626 (2007), cert. denied, 2007 Ga. LEXIS 646 (Ga. 2007); 552 U.S. 1312, 128 S. Ct. 1898, 170 L. Ed. 2d 749 (2008).
In a personal injury suit arising from the slip and fall by the injured party, because the trial court dismissed the injured party's first action as void for failure to perfect service, the second action could not amount to a renewal action under O.C.G.A. § 9-2-61(a); further, given that the second complaint disclosed on its face that the action was time-barred, it was correctly dismissed pursuant to O.C.G.A. § 9-3-33. Baxley v. Baldwin, 287 Ga. App. 245, 651 S.E.2d 172 (2007).
Because the plaintiff father's claims for false arrest, false imprisonment, and malicious prosecution against the defendants, his ex-wife and her new husband, were filed nearly 20 years after the arrest, those claims were time-barred under O.C.G.A. § 9-3-33 since there was no explanation of why the claims could not have been brought sooner. Brown v. Lewis, F.3d (11th Cir. Jan. 12, 2010), cert. denied, No. 09-1394, 2010 U.S. LEXIS 5442 (U.S. 2010)(Unpublished).
In this product liability action, genuine issues of material fact existed as to when several plaintiffs' product liability claims accrued since: (1) there was evidence that one plaintiff did not suspect that the plaintiff's suburethral sling might be defective until the summer of 2007, when the plaintiff's husband read an article about product liability lawsuits regarding the defendant; and (2) a reasonable fact finder could conclude that a second plaintiff did not suspect that the sling might be defective until after the January 2007 excision, when a doctor found an infection in the mesh and the doctor's physician assistant told the plaintiff that there was a problem with the sling. In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., F. Supp. 2d (M.D. Ga. Apr. 22, 2010).
Court of appeals affirmed a district court's judgment dismissing an action which an arrestee filed, pursuant to 42 U.S.C. § 1983, against a police officer and others because the action was filed more than two years after the arrestee was allegedly injured while being arrested, and the claim was untimely under O.C.G.A. § 9-3-33. The court rejected the arrestee's claims that the arrestee's lawsuit was timely under Georgia's renewal statute, O.C.G.A. § 9-2-61(a), and Fed. R. Civ. P. 15(c) based on the filing of an earlier lawsuit against the same police officer and the defendants who were not named in this second lawsuit less than two years after the arrestee was arrested because the claims in the original lawsuit were dismissed on the merits. Oduok v. Phillips, F.3d (11th Cir. 2005)(Unpublished).
Former police officer's claims of negligence, intentional infliction of emotional distress, and due process violations arising from the officer's resignation were time-barred as the claims accrued more than two years before the officer filed suit. Flowers v. Fulton Cnty. Sch. Sys., 654 Fed. Appx. 396 (11th Cir. 2016)(Unpublished).
Plaintiff's contradictory testimony regarding accident date construed against plaintiff.
- In a customer's claim against a satellite television provider alleging that the customer was injured when the customer tripped and fell on wires in the customer's home, the trial court erred in denying summary judgment because in the customer's deposition, the customer stated that the accident occurred in August 2015, more than two years before the customer filed suit. Although the customer's later affidavit contradicted this testimony and gave another date, the discrepancy was unexplained and therefore construed against the customer. DirecTV, LLC v. White, 355 Ga. App. 404, 844 S.E.2d 289 (2020).
Trial court did not err by dismissing the inmate's action against the court clerk based on the statute of limitations because more than two years before the inmate filed the complaint, the clerk had already updated the notice of the discharge order to the Georgia Crime Information Center. This was the latest time at which the inmate's purported tort action accrued because the inmate had long since been automatically discharged and could have maintained an action to a successful result, therefore, by the time the inmate raised the inmate's tort claims, the applicable two-year limitation period had lapsed. Seibert v. Alexander, 351 Ga. App. 446, 829 S.E.2d 473 (2019), cert. denied, No. S20C0017, 2020 Ga. LEXIS 323 (Ga. 2020).
Running of period in malicious prosecution action.
- Two-year period of limitations on a malicious prosecution action began to run when the magistrate dismissed the arrest warrant against the plaintiff. Waters v. Walton, 225 Ga. App. 119, 483 S.E.2d 133 (1997).
Accrual of action at infliction of personal injury.
- Right of action for tort accrues immediately upon infliction of injury. Dowling v. Lester, 74 Ga. App. 290, 39 S.E.2d 576 (1946).
With respect to personal injuries generally, right of action accrues to the plaintiff as of instant injuries are inflicted, and the statute of limitations begins to run from that instant. Burns v. Brickle, 106 Ga. App. 150, 126 S.E.2d 633 (1962).
Post-petition personal injury settlement.
- Court was not in a position to deny either a request for the appointment of a debtor's attorney in a post-petition personal injury action or approval of a settlement because the statute of limitations under O.C.G.A. § 9-3-33 might prevent the debtor from bringing the case through another attorney; thus, if the settlement were not approved, the claim might be rendered worthless. In re Atkins, Bankr. (Bankr. S.D. Ga. Dec. 23, 2005).
Extension of statute of limitations in 1985.
- O.C.G.A. § 1-3-1(d)(3), as amended in 1985, governs O.C.G.A. § 9-3-33, thereby extending the statute of limitations for personal injury actions to two years and one day. Gardner v. Hyster Co., 785 F. Supp. 161 (M.D. Ga. 1992).
When time elapses between commission of act and infliction of injury which first puts recipient on notice, the latter date will mark time from which statute of limitations runs. Piedmont Pharmacy, Inc. v. Patmore, 144 Ga. App. 160, 240 S.E.2d 888 (1977).
Failure to exercise reasonable diligence in pursuing claims after discovery of personal injury.
- In personal injury action when the plaintiffs suffered acute neurological symptoms shortly after the defendant treated their home for termites in 1977 and 1978, and they ultimately asked the defendant to cease applying the pesticides in 1978 and expressed their dissatisfaction to the defendant by letter in 1978, stating that they were becoming ill as a result of the pest control treatments, so that it is evident that by 1978 the plaintiffs believed they were suffering adverse physical reactions as a result of the treatments, but did not undertake to investigate the situation further until the winter of 1981-1982, the trial court was authorized to conclude that even though the plaintiffs' personal injury claims were subject to the "discovery rule," the claims were barred as a result of their failure to exercise reasonable diligence in pursuing the claims. Boyd v. Orkin Exterminating Co., 191 Ga. App. 38, 381 S.E.2d 295, cert. denied, 191 Ga. App. 921, 381 S.E.2d 295 (1989).
There was no abuse of discretion in granting the motion to dismiss the complaint because the victim failed to meet the victim's burden of proving that the victim exercised the greatest possible diligence in serving the individual with the complaint after the statute of limitations had run; the victim provided no explanation for the month-long delay in serving the individual after learning on January 11, 2002, that the individual worked and resided in Fort Worth, Texas. Neely v. Jones, 271 Ga. App. 487, 610 S.E.2d 133 (2005).
In a personal injury lawsuit, because, as a matter of law, an injured individual failed to carry the burden of showing that reasonable diligence was used in attempting to serve the complaint, the trial court abused he court'sdiscretion in denying a motion to dismiss the complaint; moreover, despite the individual's attempt to argue to the contrary, the applicable test was whether the plaintiff exercised due diligence, not whether the defendant suffered harm from the delay in service of process. Duffy v. Lyles, 281 Ga. App. 377, 636 S.E.2d 91 (2006).
Accrual with occurrence of resultant damage.
- On tort claim for personal injury, statute of limitations generally begins to run at time damage caused by tortious act occurs, at which time the tort is complete. Everhart v. Rich's, Inc., 229 Ga. 798, 194 S.E.2d 425 (1972), answer conformed to, 128 Ga. App. 319, 196 S.E.2d 475 (1973).
Running of limitation from breach of duty.
- In action for personal injuries based upon alleged negligence of the defendant, the statute of limitations commences to run from the breach of duty, not from the time when the extent of the resulting injury is ascertained. Brewer v. Southern Gas Corp., 90 Ga. App. 81, 82 S.E.2d 171 (1954); Lankford v. Trust Co. Bank, 141 Ga. App. 639, 234 S.E.2d 179 (1977).
Right of action has inception from time there has been breach of duty; and this would entitle the party to file an action for breach, without regard to whether any actual damage had in fact resulted. Cheney v. Syntex Labs., Inc., 277 F. Supp. 386 (N.D. Ga. 1967).
Cause of action has its inception at time there has been a breach of duty which entitles party to file action for the breach, without regard to whether any actual damage has in fact resulted. Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088 (N.D. Ga. 1975).
Accrual of wrongful death action at time of death.
- In case of a wrongful death, action does not accrue until death occurs, even if death does not occur until many months or years after the tortious act which caused it. Burns v. Brickle, 106 Ga. App. 150, 126 S.E.2d 633 (1962).
Wrongful death medical malpractice suit was timely because it was filed exactly two years after the decedent's death. Kitchens v. Brusman, 280 Ga. App. 163, 633 S.E.2d 585 (2006).
Discovery rule inapplicable to wrongful death action.
- "Discovery rule", which provides that the right of action does not "accrue" until the injured person discovers the cause of his or her injury, does not apply to a wrongful death action alleging a failure to warn. Miles v. Ashland Chem. Co., 261 Ga. 726, 410 S.E.2d 290 (1991).
Wrongful death claim for intentional termination of patient's life support tolled due to infancy of patient's child.
- 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).
Accrual of cause for failure to warn.
- Cause of action accrues for breach of duty owed to another, e.g., failure to warn of existence of hazard capable of producing injury, when exposure to the hazard first produces ascertainable injury; however, such failure is a continuing tort, and statute of limitations does not commence to run under these circumstances until such time as continued tortious act producing injury is eliminated, e.g., by appropriate warning in respect to the hazard. Everhart v. Rich's, Inc., 229 Ga. 798, 194 S.E.2d 425 (1972), answer conformed to, 128 Ga. App. 319, 196 S.E.2d 475 (1973).
When failure to warn of possible adverse result is made basis of action, such failure is actionable and continuing until victim is warned, discovery is made, or the victim should in exercise of ordinary care have otherwise learned of it. Marbut v. P.P.G. Indus., Inc., 148 Ga. App. 721, 252 S.E.2d 628 (1979).
Accrual of cause for malicious use of process.
- Cause of action for malicious use of civil process does not accrue, and the statute of limitation under this section does not begin to run, until action on which process issued has been finally terminated in favor of the defendant. Securities Inv. Co. v. Bennett, 117 Ga. App. 415, 160 S.E.2d 602 (1968).
Questions of law and fact distinguished.- If sole question is one as to length of time which has elapsed between accrual of right and institution of action, question as to whether action is barred is one of law. Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088 (N.D. Ga. 1975).
Question solely as to length of time which has elapsed between accrual of right and institution of action, and hence as to whether action is barred, would be one of law; but when there are facts involving a continuing tort and excuses of delay in discovering injury, the question becomes one of mixed law and fact, and is a proper question for determination by a jury. Piedmont Pharmacy, Inc. v. Patmore, 144 Ga. App. 160, 240 S.E.2d 888 (1977).
Plaintiff cannot extend limitation merely by suing for last of series of consequences at time when right of action for first consequence is barred. Cheney v. Syntex Labs., Inc., 277 F. Supp. 386 (N.D. Ga. 1967).
Mere ignorance of facts constituting cause of action does not prevent running of statute of limitations. Barrett v. Jackson, 44 Ga. App. 611, 162 S.E. 308 (1932); Peacock v. Retail Credit Co., 302 F. Supp. 418 (N.D. Ga. 1969), aff'd, 429 F.2d 31 (5th Cir. 1970), cert. denied, 401 U.S. 938, 91 S. Ct. 927, 28 L. Ed. 2d 217 (1971); Crawford v. McDonald, 125 Ga. App. 289, 187 S.E.2d 542 (1972).
Statute may be tolled when ordinary care exercised.
- When injury resulting from tortious act is not immediately apparent, statute of limitation is tolled so long as the victim could not, in exercise of ordinary care, have learned of it, and when the failure to warn of such possible result is made basis of action, such failure is actionable and continuing until the victim is warned, discovery is made, or the victim should in the exercise of ordinary care have otherwise learned of it. Forgay v. Tucker, 128 Ga. App. 497, 197 S.E.2d 492 (1973).
When injury resulting from tortious act is not immediately apparent, the statute of limitation is tolled so long as the victim could not in exercise of ordinary care have learned of it. Piedmont Pharmacy, Inc. v. Patmore, 144 Ga. App. 160, 240 S.E.2d 888 (1977); Simons v. Conn, 151 Ga. App. 525, 260 S.E.2d 402 (1979).
Cause of action does not accrue and the statute of limitation does not run against a plaintiff until the plaintiff knew or through the exercise of reasonable diligence should have discovered not only the nature of the plaintiff's injury but also the causal connection between the injury and the alleged negligent conduct of the defendant. King v. Seitzingers, Inc., 160 Ga. App. 318, 287 S.E.2d 252 (1981).
Trial court erred in holding that the two-year statute of limitations barred the plaintiff's personal injury action, since the evidence was insufficient to show that the plaintiff knew or had reason to know of the causal connection between the injury and the alleged negligent conduct of the defendants at the time the plaintiff filed an earlier workers' compensation claim alleging asbestosis. Welch v. Celotex Corp., 951 F.2d 1235 (11th Cir. 1992).
Continuing tort doctrine tolled running of the statute of limitations.
- Tenant's action against the leasing agent of the tenant's apartment complex alleging that the tenant was injured over a period of almost three years by soot emitted from the apartment's heating system was not time-barred by O.C.G.A. § 9-3-33 because the continuing tort theory tolled the running of the statute of limitations to within two years before the action was filed; because there was evidence that the tenant's exposure to the hazard was not eliminated more than two years before the action was filed, the agent's motion for a directed verdict on that ground was properly denied. Ambling Mgmt. Co. v. Purdy, 283 Ga. App. 21, 640 S.E.2d 620 (2006).
Plaintiff's attorney's emergency cancer surgery and the plaintiff's attorney's attempt at a timely filing by mail, lost by the postal service or the clerk, did not constitute excusable neglect which would operate to extend the statute of limitations. Lackey v. Crittenden, 217 Ga. App. 432, 457 S.E.2d 701 (1995).
Plaintiff must exercise reasonable diligence to learn of existence of cause of action. Crawford v. McDonald, 125 Ga. App. 289, 187 S.E.2d 542 (1972).
Failure to exercise greatest possible diligence.
- Although a personal injury litigant hired a "skip tracer," and received the report the next day, because that litigant neglected to attempt to move for an order for service by publication until almost two weeks later, and did not secure the order until over a month after that, and, there was no evidence of any contact between the litigant during the interim, the trial court did not err in finding that the litigant did not exercise the greatest possible diligence; moreover, a finding that the litigant exercised the requisite due diligence to authorize service by publication did not compel a finding that the litigant exercised the greatest possible diligence in serving the opposing party personally three months after the opposing party filed an answer, and nearly four months after the statute of limitation had run. Green v. Cimafranca, 288 Ga. App. 16, 653 S.E.2d 782 (2007).
Based on sufficient evidence that a resident stood idle for six months after learning of the difficulties in serving a non-resident, the resident's personal injury complaint was properly dismissed on grounds that the resident failed to exercise due diligence in effectuating service of process; hence, the statute of limitations under O.C.G.A. § 9-3-33 was not tolled. Livingston v. Taylor, 284 Ga. App. 638, 644 S.E.2d 483 (2007).
Fraud which would have been discovered if usual and reasonable diligence had been exercised is not a good reply to statute of limitations. Crawford v. McDonald, 125 Ga. App. 289, 187 S.E.2d 542 (1972).
When fraud tolls statute.- In order for fraud to toll statute of limitations, it must have effect of deterring plaintiff from bringing action. Wolfe v. Virusky, 306 F. Supp. 519 (S.D. Ga. 1969), rev'd on other grounds, 470 F.2d 831 (5th Cir. 1972).
Fraud not alleged or cited in record.
- Former psychiatric inmate's pro se complaint alleging civil rights and other violations was properly dismissed based on expiration of the two-year statute of limitation of O.C.G.A. § 9-3-33. Although the inmate claimed that the statute of limitations was tolled by fraud, the inmate did not allege fraud or cite to evidence of fraud in the record, and the inmate did not show the existence of a 20-year statute of limitations. White v. City of Atlanta Police Dep't, 289 Ga. App. 575, 657 S.E.2d 545 (2008).
Limitation period was not tolled throughout defendants' alleged absence from the state, when there was no showing that the defendants could not have been served with process pursuant to the long-arm statute. Towns v. Brown, 177 Ga. App. 504, 339 S.E.2d 926 (1986).
Limitation period was not tolled throughout defendant's alleged absence from the state. Long v. Marino, 212 Ga. App. 113, 441 S.E.2d 475 (1994).
Limitation period was not tolled based on defendant's relocation outside the state when service was possible under the long-arm statute and service had been perfected in three actions brought by the plaintiff. Worley v. Pierce, 211 Ga. App. 863, 440 S.E.2d 749 (1994).
Limitation period not tolled because plaintiff failed to demonstrate diligence in attempting to obtain service.
- Defendant's motion to dismiss the plaintiff's personal injury complaint should have been granted because service occurred after the two-year statute of limitations under O.C.G.A. § 9-3-33 expired, and the limitation period was not tolled because the record was devoid of evidence that the plaintiff made any attempt to personally serve the defendant for more than two years after the trial court's order granting the motion for service by publication; in the event that service occurred after the expiration of the statute of limitations, the limitation period under O.C.G.A. § 9-3-33 was tolled only if the plaintiff diligently attempted to make service. Dunn v. Kirsten, 273 Ga. App. 27, 614 S.E.2d 156 (2005), but see Cohen v. Allstate Ins. Co., 277 Ga. App. 437, 626 S.E.2d 628 (2006).
Settlement representation does not toll running of limitations.
- Any representations by the defendant to the plaintiff that the defendant intended to settle the claim, resulting in the plaintiff not filing suit until after the running of the statute of limitations, would not, even if true, constitute such fraud as would toll the running of the statute. Drohan v. Carriage Carpet Mills, 175 Ga. App. 717, 334 S.E.2d 219 (1985).
Settlement negotiations with insurer.
- In an action arising from an automobile collision, the fact that the defendant's insurer led the plaintiff to believe through settlement negotiations that the plaintiff's claim would be paid without a suit, the defendant was not barred from asserting the statute of limitations as a defense. Howe v. Groover, 219 Ga. App. 112, 464 S.E.2d 240 (1995).
Doctrine of continuing tort tolls statute of limitations. Piedmont Pharmacy, Inc. v. Patmore, 144 Ga. App. 160, 240 S.E.2d 888 (1977); Bitterman v. Emory Univ., 175 Ga. App. 348, 333 S.E.2d 378 (1985).
Doctrine of continuing tort is directly analogous to tolling of statute of limitations because of fraud; in both instances, running of the statute is delayed until discovery of the injury, if the delay in discovery is not occasioned by failure of the plaintiff to exercise ordinary care as to continuing tort or reasonable diligence as to fraud. Piedmont Pharmacy, Inc. v. Patmore, 144 Ga. App. 160, 240 S.E.2d 888 (1977).
Theory of continuing tort extends to those factual situations where any negligent or tortious act is of a continuing nature and produces injury in varying degrees over a period of time. Everhart v. Rich's, Inc., 229 Ga. 798, 194 S.E.2d 425 (1972), answer conformed to, 128 Ga. App. 319, 196 S.E.2d 475 (1973).
In continuing tort, cause of action does not accrue so as to cause the statute of limitation to run until a plaintiff discovers or with reasonable diligence should have discovered that the plaintiff was injured. King v. Seitzingers, Inc., 160 Ga. App. 318, 287 S.E.2d 252 (1981).
O.C.G.A § 9-3-33, under the continuous tort doctrine, did not bar a former inmate's negligence claim against two court clerks, based on their alleged failure to communicate the inmate's sentence to the Department of Corrections, as the clerks' violation of their continuing duty to communicate the inmate's sentence to the Department resulted in continuous injury in the form of an ever-increasing illegal confinement that was not eliminated until the inmate was released from prison; hence, the trial court erred in finding that the claim was time-barred. Hicks v. McGee, 283 Ga. App. 678, 642 S.E.2d 379 (2007), cert. denied, 2007 Ga. LEXIS 512 (Ga. 2007).
Continuing tort doctrine inapplicable.- Cause of action for intentional infliction of emotional distress, based on sexual harassment, accrued at the time the acts of harassment were committed, and the continuing tort doctrine was inapplicable since the plaintiff was fully aware of the tortious acts allegedly committed by the defendants and could have filed the plaintiff's suit within the two-year limitations period. Smith v. Tandy Corp., 738 F. Supp. 521 (S.D. Ga. 1990).
Former Code 1933, §§ 3-801 and 3-802 (see now O.C.G.A. §§ 9-3-90 and9-3-91), relating to disabilities, toll the running of limitations under former Code 1933, § 3-1004 (see now O.C.G.A. § 9-3-33). Lacy v. Ferrence, 222 Ga. 635, 151 S.E.2d 763 (1966).
Two-year statute of limitation tolled by workers' compensation proceeding.
- When an employee instituted a proceeding pursuant to the Workers' Compensation Act for injuries sustained when a forklift turned over on the employee, and the employee's claim for workers' compensation benefits was successful initially and on appeal, but was reversed by the Court of Appeals, the two-year statute of limitation on the employee's personal injury action against the former employer was tolled for the period during which the employee pursued the employee's workers' compensation remedy. Butler v. Glen Oak's Turf, Inc., 196 Ga. App. 98, 395 S.E.2d 277 (1990).
Pendency of grievance procedure brought against professor by university was not a basis for tolling the one-year limitation period applicable to the professor's libel and slander action against individual employees of the university. Jahannes v. Mitchell, 220 Ga. App. 102, 469 S.E.2d 255 (1996).
Hospitalization or imprisonment.
- Neither hospitalization nor appellant's subsequent imprisonment effected a tolling of the statute of limitations pursuant to O.C.G.A. §§ 9-3-90 and9-3-91. Lawson v. Glover, 957 F.2d 801 (11th Cir. 1987).
Fact that last day is Sunday will not prevent bar of this section from attaching. Brown v. Emerson Brick Co., 15 Ga. App. 332, 83 S.E. 160 (1914); Davis v. Hill, 113 Ga. App. 280, 147 S.E.2d 868 (1966), overruled on other grounds, Lowe v. Pue, 150 Ga. App. 234, 257 S.E.2d 209 (1979).
Statute of limitations for personal injury claims is not extended by fact that last day for bringing suit falls on Saturday or Sunday. Kight v. Watts, 150 Ga. App. 694, 258 S.E.2d 323 (1979).
Action timely filed in federal court.- Although fact that final day of limitation period fell on Sunday did not allow an extra day, receipt of complaint by deputy clerk of federal court in post office box in early morning hours on Saturday constituted sufficient filing of action prior to midnight of the following day, notwithstanding fact that clerk did not open box till Monday. Johansson v. Towson, 177 F. Supp. 729 (M.D. Ga. 1959) (case based in part on Federal Rules of Civil Procedure).
Extension of limitations for cross-claims.
- Ga. L. 1967, p. 226, § 37 (see now O.C.G.A. § 9-3-97), providing for extension of limitation period with respect to counterclaims and cross-claims until last day upon which answer or other defensive pleadings should have been filed, did not operate to extend period of limitation prescribed by former Code 1933, § 3-1004 (see now O.C.G.A. § 9-3-33), which was otherwise applicable to cross-claims. Champion v. Wells, 139 Ga. App. 759, 229 S.E.2d 479 (1976).
Appointment of receiver for foreign corporation does not affect running of this section. Cain v. Seaboard Air-Line Ry., 138 Ga. 96, 74 S.E. 764 (1912).
Action for negligently causing arrest accrues at time of arrest.
- Assuming, but without deciding, that a defendant may be liable for negligently causing the arrest of another, the court found that if such a cause of action existed against one who did not take out the warrant, but nevertheless caused the arrest of another, the statute of limitations commenced to run at the time of the arrest. Daniel v. Georgia R.R. Bank & Trust Co., 255 Ga. 29, 334 S.E.2d 659 (1985).
Running of limitation for injury claim does not bar loss of consortium claim.
- When a suit for personal injuries is filed and the spouse joins in the suit demanding judgment for loss of consortium, even though the court later determines the plaintiffs have not been diligent in obtaining service upon the defendant following the running of the statute of limitations on the personal injury claim, it is error to dismiss the entire complaint when the statute of limitations does not bar the action for loss of consortium. Elwell v. Haney, 169 Ga. App. 481, 313 S.E.2d 499 (1984).
Limitation period for actions based on loss of consortium is four years and the fact that the two-year limitation period may have run on the plaintiff's action for personal injuries due to lack of diligence in perfecting service was of no consequence with respect to the viability of the derivative action for loss of consortium. Huntington v. Fishman, 212 Ga. App. 27, 441 S.E.2d 444 (1994).
Deputy capacity's as deputy versus individual capacity.
- Deputy in an individual capacity was not substantially identical to the deputy in a capacity as deputy sheriff; thus, a passenger's action against the deputy in the capacity as deputy sheriff was barred by the statute of limitations. Soley v. Dodson, 256 Ga. App. 770, 569 S.E.2d 870 (2002).
Employee's claim against employer for intentional infliction of emotional distress was barred by the statute of limitations because the employee's alleged cause of action accrued when employee resigned from the employee's position more than two years earlier and thus ceased to suffer further damages. Adams v. Emory Univ. Clinic, 179 Ga. App. 620, 347 S.E.2d 670 (1986).
Action for intentional infliction of emotional distress, tortious misconduct, and negligent hiring was barred when the last acts of harassment against the plaintiff occurred more than two years prior to the filing of the action. Risner v. R.L. Daniel & Assocs, P.C., 231 Ga. App. 750, 500 S.E.2d 634 (1998).
Plaintiff's claims of tortious conduct on the part of other employees were barred by O.C.G.A. § 9-3-33 since the plaintiff's complaint failed to describe incidents occurring during the period at issue that might give rise to a continuing tort violation. Williams v. Lear Operations Corp., 73 F. Supp. 2d 1377 (N.D. Ga. 1999).
Former employer was granted summary judgment on a former employee's state law claim of intentional or negligent infliction of emotional distress because the final alleged injury that the employee sustained was a termination; however, the lawsuit was not filed until more than three years later, and thus the employee's state law claim against the employer was time barred under the two-year statute of limitations of O.C.G.A. § 9-3-33. Brown v. Seminole Marine, Inc., F. Supp. 2d (M.D. Ga. Sept. 9, 2005).
Relation back of assault and battery amendment to complaint.
- Assault and battery claim added to plaintiff's medical malpractice complaint was not time barred since it could not be said that the alleged malpractice and alleged unauthorized touching involved in the operation arose from different facts and, therefore, the amendment related back to the original complaint. Smith v. Wilfong, 218 Ga. App. 503, 462 S.E.2d 163 (1995).
Requirements of publication not met.
- Trial court erred in holding that service by publication was sufficient to provide the defendant with fair notice of personal injury suit so as to confer the court with in personam jurisdiction as the complaint did not fall into an exception to in personam jurisdiction as the complaint acknowledged that the defendant departed from Ware County, Georgia, which led to the conclusion that Ware County was not the county of residence and the defendant was not within the court's jurisdiction. Henderson v. James, 350 Ga. App. 361, 829 S.E.2d 429 (2019).
Failure to perfect service of process in a renewal action.
- Passenger's personal injury action against a driver renewed pursuant to O.C.G.A. § 9-2-61 was dismissed for failure to perfect service of process against the driver due to lack of diligence. Although the passenger attempted to serve the driver for several months, the passenger then allowed 72 days to elapse before making another attempt. The court rejected the passenger's contention that O.C.G.A. § 33-7-11, providing for personal service after service of publication while allowing litigation against an uninsured motorist carrier to proceed, allowed for an additional 12 months after service by publication. Williams v. Patterson, 306 Ga. App. 624, 703 S.E.2d 74 (2010).
Failure to perfect service promptly.
- When service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that the plaintiff acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible. Brown v. Bailey, 180 Ga. App. 555, 349 S.E.2d 792 (1986); Ingram v. Grose, 180 Ga. App. 647, 350 S.E.2d 289 (1986).
Although timely filed, action was dismissed because of plaintiff's failure to perfect service of the complaint promptly since the statute of limitations had run. Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986).
Being unaware of the concept that service of process has anything to do with the tolling of the statute of limitations, as opposed to the filing of the complaint, is not an adequate justification for delay so that service would relate back to the date of filing. Robinette v. Johnston, 637 F. Supp. 922 (M.D. Ga. 1986).
Even though defendant gave an incorrect address at the accident scene, the plaintiff's filing of a complaint did not toll the statute when the plaintiff did not initiate a search for the defendant until after "the return of no service" over two years later. Lawrence v. Noltimier, 213 Ga. App. 628, 445 S.E.2d 378 (1994).
Owners' personal injury and property damages action against a manufacturer, which concerned a fire in January 30, 2000, was barred by the two- and four-year statutes of limitations, because the owners failed to timely perfect service, as required by O.C.G.A. § 9-11-4(c), until February 23, 2004, which was more than five days after the owners filed a renewed complaint under O.C.G.A. § 9-2-61(a) on October 28, 2003. Johnson v. Am. Meter Co., 412 F. Supp. 2d 1260 (N.D. Ga. 2004).
Because an insured did not serve a copy of an underinsured motorist complaint upon the insurer within the two year statute of limitations in O.C.G.A. § 9-3-33 or within 90 days of receiving the discovery responses indicating that the vehicle that hit the insured's vehicle was underinsured, the insured did not satisfy the service requirement of O.C.G.A. § 33-7-11(d). Calhoun v. Gov't Emples. Ins. Co., 296 Ga. App. 622, 675 S.E.2d 523 (2009).
Motorist sued a driver over injuries allegedly sustained in an auto accident. As the motorist took no steps whatsoever to perfect service for approximately four months after the limitations period of O.C.G.A. § 9-3-33 lapsed, the motorist did not act diligently; therefore, service of process did not relate back to the original filing date. McCullers v. Harrell, 298 Ga. App. 798, 681 S.E.2d 237 (2009), cert. denied, No. S09C1914, 2010 Ga. LEXIS 55 (Ga. 2010).
Evidence was sufficient to support the court's judgment dismissing the appellant's complaint against the appellee for failure to perfect service of process because the appellant failed to serve the appellee within five days of the two-year statute of limitations, O.C.G.A. § 9-3-33; the appellee proffered evidence that: (1) the appellee did not reside in the town where service was allegedly made at the time service was attempted; (2) the appellee's brother resided at that address during the relevant time period; and (3) the appellee's brother advised the appellee of appellant's complaint after being provided with a copy of the complaint by the process server; and (4) the appellee also presented evidence from the appellee's landlord confirming that the appellee had lived at a different residence. Jones v. Lopez-Herrera, 308 Ga. App. 81, 706 S.E.2d 609 (2011).
Four month delay in service.
- In an action against the defendant, a Kentucky resident, to recover damages arising from a motor vehicle accident under the Georgia Nonresident Motorist Act (NRMA), O.C.G.A. § 40-12-1 et seq., the trial court granted the defendant's motion to dismiss as the statute of limitation had expired, and the plaintiff had failed to effect service upon the defendant by certified mail under O.C.G.A. § 40-12-2 of the NRMA because the plaintiff knew where the defendant resided at the time of the accident, and the plaintiff confirmed that the defendant was registered to vote at that address on the same day that the plaintiff filed the complaint, but the plaintiff made no attempt to serve the defendant at that address until nearly four months after the statute of limitation expired. Covault v. Harris, 337 Ga. App. 301, 787 S.E.2d 272 (2016).
Service of an uninsured motorist carrier within five business days after the date of filing of the complaint, in an action for personal injuries, related back to the date of filing as a matter of law for statute of limitation purposes. Williams v. Colonial Ins. Co., 199 Ga. App. 760, 406 S.E.2d 99 (1991).
Time computation method mandated by § 1-3-1. - When injured employee initiated action against heater manufacturer within the two-year period contemplated by O.C.G.A. § 9-3-33 by bringing it on the second anniversary of the injury, using the computation method mandated by O.C.G.A. § 1-3-1(d)(3), the complaint was timely and improperly dismissed by the trial court. Davis v. Desa Int'l, Inc., 209 Ga. App. 318, 433 S.E.2d 410 (1993).
Natural gas marketer's defamation complaint was timely filed because the complaint was filed on the first anniversary of the date of publication; O.C.G.A. § 1-3-1(d)(3) applies to the one-year statute of limitation for injuries to the reputation found in O.C.G.A. § 9-3-33, so that the first day shall not be counted in determining whether a claim is timely filed. Infinite Energy, Inc. v. Pardue, 310 Ga. App. 355, 713 S.E.2d 456 (2011).
Time computation statute amendment not retroactive.
- Because the 1985 amendment to O.C.G.A. § 1-3-1(d)(3), relating to computation of time, effective July 1, 1985, was silent on the question of retroactive application, it had no application to a personal injury case when the period of limitations would have run on June 29, 1985, under the law prior to the amendment. Loveless v. Grooms, 180 Ga. App. 424, 349 S.E.2d 281 (1986).
Nonholiday closings of clerk's office.
- Claim is timely filed when it is delivered to the official receptacle of the clerk's office prior to the expiration of the statute of limitations, but because of an unofficial closing of the clerk's office on a nonholiday the claim is not picked-up and marked as being received until one day after the expiration date. Lavan v. Philips, 184 Ga. 573, 362 S.E.2d 138 (1987).
Tolling of civil rights action.
- Two-year limitations period under O.C.G.A. § 9-3-33 for a federal civil rights action is not tolled during the period in which a plaintiff appeals an employment termination decision to the county merit council. Ivey v. DeKalb County Dep't of Pub. Safety, 668 F. Supp. 1579 (N.D. Ga. 1987).
Arrestee's claim of unlawful arrest was not preserved under the Heck rule, which tolled 42 U.S.C. § 1983 claims that, if successful, might imply the invalidity of a conviction, because that rule was not applicable in the pre-conviction context; thus, the arrestee's claim was time barred under O.C.G.A. § 9-3-33 since it was filed three years after arrest. Watts v. Epps, 475 F. Supp. 2d 1367 (N.D. Ga. 2007).
State prisoner's 42 U.S.C. § 1983 claims related to the validity of a conviction on a guilty plea were properly dismissed under 28 U.S.C. §§ 1915A and 1915(e)(2) as Heck-barred, and the other claims were time-barred by the two-year limitations period of O.C.G.A. § 9-3-33 because a pending habeas petition did not create extraordinary circumstances to equitably toll the limitations period for the § 1983 claims. Salas v. Pierce, F.3d (11th Cir. Oct. 23, 2008)(Unpublished).
Prisoner's 42 U.S.C. § 1983 action was timely filed under Georgia's two-year statute of limitations because the statute of limitations was equitably tolled while the prisoner complied with the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), and pursued administrative remedies prior to filing suit, and the prisoner filed suit within two years after exhausting PLRA's mandatory administrative review process. Dunn v. Hart, F. Supp. 2d (S.D. Ga. Mar. 9, 2015).
Tolling not shown.
- When plaintiff federal prisoner knew of defendant state's forfeiture action in 1995, but filed a 42 U.S.C. § 1983 civil rights action alleging Fifth Amendment due process violations to recover the seized property seven years after O.C.G.A. § 9-3-33's two-year statute of limitations period expired, and no state court exhaustion was required, the suit was time-barred. Berry v. Keller, F.3d (11th Cir. 2005)(Unpublished).
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).
Plaintiffs, residents, sued the defendants, a chemical plant and a laboratory, alleging the plaintiffs were injured due to chemical fires at the laboratory's facility. As the plaintiffs failed to meet their burden to establish that O.C.G.A. § 9-3-33, the statute of limitations on the adult plaintiffs' personal injury claims, was tolled, the defendants were properly granted summary judgment on those claims. Smith v. Chemtura Corp., 297 Ga. App. 287, 676 S.E.2d 756 (2009).
There was no dispute that the defendant testing company transmitted the last of the test results on asphalt composition that the company provided to the Georgia Department of Transportation on November 22, 2004, and so plaintiff asphalt company had one year from that date to file the plaintiff's claim. The plaintiff did not file a complaint until October 10, 2006, almost a year too late. Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146 (11th Cir. 2011).
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).
In a case in which a district court dismissed a tenant's claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act as time-barred based upon the two-year statute of limitations in O.C.G.A. § 9-3-33, the tenant conceded that the complaint was filed more than two years after the last act of discrimination and unsuccessfully argued that the complaint was timely because the tenant was entitled to equitable tolling. The district court did not err in concluding that the tenant failed to show extraordinary circumstances justifying equitable tolling; contrary to the tenant's suggestion, nothing in the pleadings indicated that the U.S. Department of Housing and Urban Development misled the tenant into allowing the statute of limitations for the ADA and Rehabilitation Act claims to expire. Hunt v. Ga. Dep't of Cmty. Affairs, F.3d (11th Cir. Sept. 18, 2012)(Unpublished).
Fraud not shown, thus no tolling.
- Claim for pain and suffering was time barred under O.C.G.A. § 9-3-33 because O.C.G.A. § 9-3-96 failed to provide any tolling based on fraud since the very act of hiring a hit man to commit murder was not a separate and distinct fraud to support a finding of fraudulent concealment or actual fraud in and of itself in favor of the administrator of the victim's estate. Rai v. Reid, 294 Ga. 270, 751 S.E.2d 821 (2013).
Reinstatement of civil rights action permitted.
- Plaintiff was allowed to reinstate an original 42 U.S.C. § 1983 complaint under Fed. R. Civ. P. 60(b) because of excusable neglect due to the fact that the renewal statute of O.C.G.A. § 9-2-61 was inapplicable to reinstate a second action barred by the limitations period of O.C.G.A. § 9-3-33, adequate grounds for relief were demonstrated, and no prejudice was shown. Highsmith v. Thomas, F. Supp. 2d (S.D. Ga. Apr. 18, 2007).
Action not subject to renewal.
- Because an insured who brought a personal injury suit against an alleged tortfeasor had never personally served the alleged tortfeasor when the original action was filed, the action was not valid prior to dismissal and thus was not subject to renewal under O.C.G.A. § 9-2-61. Accordingly, the present action was time-barred under O.C.G.A. § 9-3-33. Williams v. Hunter, 291 Ga. App. 731, 662 S.E.2d 810 (2008).
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).
Relation back of amendments to complaint.
- When plaintiff's original complaint, based on 42 U.S.C. § 1983 violations, was filed within two years after the injury, and the plaintiff asserted a First Amendment claim in an amendment, even though the First Amendment expression arose out of the plaintiff's prior activities, the plaintiff's claim for violation of such right arose out of the defendant's acts which were the basis of the § 1983 claim and related back to the date of the original complaint. Blue Ridge Mt. Fisheries, Inc. v. Department of Natural Resources, 217 Ga. App. 89, 456 S.E.2d 651 (1995).
Trial court properly granted the alleged tortfeasor's motion to dismiss since the injured party waited until almost two months after the expiration of the statute of limitations pursuant to O.C.G.A. § 9-3-33 and some eight months after discovering the alleged tortfeasor's correct address to properly serve the alleged tortfeasor. Hardy v. Lucio, 259 Ga. App. 543, 578 S.E.2d 224 (2003).
Parking lot owner was entitled to dismissal of a plaintiff's negligence action arising from a January 19, 2005, incident because the amended complaint filed June 7, 2007, adding the owner as a defendant did not relate back under O.C.G.A. § 9-11-15(c) and, thus, was barred by the statute of limitations because the mere fact that the owner's attorney worked in the same firm as the original defendants' attorney did not impute knowledge of the lawsuit to the owner. LAZ Parking/Georgia, Inc. v. Jones, 294 Ga. App. 122, 668 S.E.2d 547 (2008).
Parents' suit alleging civil rights violations based on the alleged denial of an appropriate independent educational evaluation of their child was time-barred under the two year limitations period applicable to 42 U.S.C. § 1983 actions filed in Georgia because on the date that the limitations period had expired, the parents' first amended complaint had been dismissed, and the amended complaint did not replace or supersede the original complaint, and since the § 1983 claims in the original complaint had been dismissed, there remained nothing for the amendment to relate back to under Fed. R. Civ. P. 15(c). S.C. v. Cobb County Sch. Dist., F. Supp. 2d (N.D. Ga. Aug. 10, 2011).
Claim of imputed simple negligence against a hospital in the second amended complaint (SAC) related back to the date of the original complaint, and the new claim was not barred by the applicable two-year statute of limitation because the facts alleged in the SAC occurred at the same time as certain facts in the original complaint, near the end of the three-and-a-half hour time frame of the treatment preceding the plaintiff's alleged injury, the facts occurred at the exact same location, and involved the same general subject matter - the negligent treatment of the plaintiff's dangerously unstable spine; and the allegations were part of the same events that led up to the same ultimate injury for which the plaintiff was seeking damages. Tenet HealthSystem GB, Inc. v. Thomas, 304 Ga. 86, 816 S.E.2d 627 (2018).
Claim time-barred for failure to add party.
- In an injured party's direct action against an insurer, because the injured party failed to seek leave of court to add the insurer's insured as a party, and the relation back doctrine did not apply, the insurer and the insured were properly dismissed from the injured party's lawsuit; thus, the claim against the insured was time-barred. Crane v. State Farm Ins. Co., 278 Ga. App. 655, 629 S.E.2d 424, cert. denied, 2006 Ga. LEXIS 544 (2006).
Dismissal proper when statute of limitations not expired.
- Prisoner's 42 U.S.C. § 1983 action was properly dismissed under Fed. R. Civ. P. 41(b) because the prisoner was ordered to complete certain forms and was told that failure to comply would result in a dismissal. Because the prisoner did not comply within five months and the dismissal was without prejudice before the two year statute of limitations under O.C.G.A. § 9-3-33 had expired, there was no abuse of discretion. Sanders v. Barrett, F.3d (11th Cir. Oct. 17, 2005)(Unpublished).
OPINIONS OF THE ATTORNEY GENERALCommissioner of Offender Rehabilitation should maintain all records related to possible tort actions for at least two years after a possible tort occurs. 1972 Op. Att'y Gen. No. 72-75.
RESEARCH REFERENCES
Am. Jur. 2d.
- 41 Am. Jur. 2d, Husband and Wife, §§ 7, 212 et seq., 226. 50 Am. Jur. 2d, Libel and Slander, § 404 et seq. 51 Am. Jur. 2d, Limitation of Actions, §§ 142 et seq., 167.
Slander of Title, 7 POF2d 133.
Discovery Date in Medical Malpractice Litigation, 26 POF3d 185.
C.J.S.- 54 C.J.S., Limitations of Actions, §§ 97, 197 et seq.
ALR.
- Subsequent denial of liability following promise or negotiations as affecting contractual limitation for action upon insurance policy, 3 A.L.R. 218.
Right of one who has acted for another to recover for damage to reputation or business in consequence of the latter's failure to keep his engagements with third persons, 42 A.L.R. 1094.
When statute of limitations commences to run against action against one who has misrepresented or exceeded his authority to contract for another, 64 A.L.R. 1194.
Provision of death statute as to time of bringing action as a condition of the right of action or as a mere statute of limitations, 67 A.L.R. 1070.
Delay in procuring appointment of personal representative of deceased or of person causing his death in event of latter's death, as extending period for bringing an action for death, 70 A.L.R. 472.
Complaint or declaration which fails to allege that action for wrongful death was brought within statutory period, or affirmatively shows that it was not, as subject to demurrer, 107 A.L.R. 1048.
Action by one person for consequential damages on account of injury to another as one for bodily or personal injury within statute of limitations, 108 A.L.R. 525.
Expiration of time within which action could have been brought on original cause of action, if not released, as bar to action which seeks to avoid release because of fraud or mistake and recover on original cause or for loss of value of original cause, 120 A.L.R. 1500.
Statute of limitations applicable to action for slander of title, 131 A.L.R. 837.
Exceptions attaching to limitation prescribed by death statutes or survival statutes allowing recovery of damages for death, 132 A.L.R. 292.
Amendment of complaint or declaration by setting up death statute after expiration of period to which action is limited by the death statute or by the statute of limitations, 134 A.L.R. 779.
Action for "injury to person" in statutes relating to notice or limitation as including actions ex contractu, 157 A.L.R. 763.
Workmen's compensation: time and jurisdiction for review, reopening, modification, or reinstatement of award or agreement, 165 A.L.R. 9.
Limitation applicable to action for personal injury as affecting action for death resulting from injury, 167 A.L.R. 894.
When statute of limitations begins to run against action for loss of services or consortium, 173 A.L.R. 750.
When limitation period begins to run against cause of action or claim for contracting of disease, 11 A.L.R.2d 277.
Action by passenger against carrier for personal injuries as based on contract or on tort, with respect to application of statutes of limitation, 20 A.L.R.2d 331.
Statute of limitations applicable to action, by way of subrogation or the like, by employer or insurance carrier against third person for injury to employee, 41 A.L.R.2d 1044.
When statute of limitations begins to run against action for false imprisonment or false arrest, 49 A.L.R.2d 922.
Death action against municipal corporation as subject to statute of limitations governing wrongful death actions or that governing actions against a municipality for injury to person or property, 53 A.L.R.2d 1068.
What statute of limitations, in the absence of an express provision as to such tort, governs an action for malicious prosecution, 70 A.L.R.2d 1088.
Scope of limitation statutes specifically governing assault and battery, 90 A.L.R.2d 1230.
Time limitations on nonstatutory actions for maritime personal injuries, 91 A.L.R.2d 1417.
When statute of limitations begins to run against action for abuse of process, 1 A.L.R.3d 953.
What 12-month period constitutes "year" or "calendar year" as used in public enactment, contract, or other written instrument, 5 A.L.R.3d 584.
What statute of limitations governs action for malicious use of process or abuse of process, in the absence of an express provision for such tort, 10 A.L.R.3d 533.
Accrual of cause of action and tolling of limitation period of § 6 of the Federal Employers' Liability Act (45 USC § 56), 16 A.L.R.3d 637.
Spouse's or parent's right to recover punitive damages in connection with recovery of damages for medical expenses or loss of services or consortium arising from personal injury to other spouse or to child, 25 A.L.R.3d 1416.
What constitutes "publication" of libel in order to start running of period of limitations, 42 A.L.R.3d 807.
Tolling or interruption of running of statute of limitations pending appointment of executor or administrator for tortfeasor in personal injury or death action, 47 A.L.R.3d 179.
Waiver or loss of right of privacy, 57 A.L.R.3d 16.
When statute of limitations commences to run against claim for contribution or indemnity based on tort, 57 A.L.R.3d 867.
What statute of limitations applies to action for contribution against joint tort-feasors, 57 A.L.R.3d 927.
Effect of injured employee's proceeding for workmen's compensation benefits on running of statute of limitations governing action for personal injury arising from same incident, 71 A.L.R.3d 849.
Tort claim against which period of statute of limitations has run as subject of setoff, counterclaim, cross bill, or cross action in tort action arising out of same accident or incident, 72 A.L.R.3d 1065.
Measure and elements of damages in wife's action for loss of consortium, 74 A.L.R.3d 805.
Minority of surviving children as tolling limitation period in state wrongful death action, 85 A.L.R.3d 162.
Products liability: what statute of limitations governs actions based on strict liability in tort, 91 A.L.R.3d 455.
When does statute of limitations begin to run upon an action by subrogated insurer against third-party tortfeasor, 91 A.L.R.3d 844.
Statute of limitations: running of statute of limitations on products liability claim against manufacturer as affected by plaintiff's lack of knowledge of defect allegedly causing personal injury or disease, 91 A.L.R.3d 991.
When statute of limitations begins to run as to cause of action for development of latent industrial or occupational disease, 1 A.L.R.4th 117.
What statute of limitations governs damage action against attorney for malpractice, 2 A.L.R.4th 284.
Recovery for loss of consortium for injury occurring prior to marriage, 5 A.L.R.4th 300.
Actual notice or knowledge by governmental body or officer of injury or incident resulting in injury as constituting required claim or notice of claim for injury - modern status, 7 A.L.R.4th 1063.
What statute of limitations applies to actions for personal injuries based on breach of implied warranty under UCC provisions governing sales, 20 A.L.R.4th 915.
Limitation of actions: invasion of right of privacy, 33 A.L.R.4th 479.
When statute of limitations commences to run on automobile no-fault insurance personal injury claim, 36 A.L.R.4th 357.
Action for loss of consortium based on nonmarital cohabitation, 40 A.L.R.4th 553.
Validity, construction, and application, in nonstatutory personal injury actions, of state statute providing for borrowing of statute of limitations of another state, 41 A.L.R.4th 1025.
Time of discovery as affecting running of statute of limitations in wrongful death action, 49 A.L.R.4th 972.
Application of "discovery rule" to postpone running of limitations against action for damages from assault, 88 A.L.R.4th 1063.
Causes of action governed by limitations period in UCC § 2-725, 49 A.L.R.5th 1.
Attorney malpractice - tolling of other exceptions to running of statute of limitations, 87 A.L.R.5th 473.
Insurance agents or brokers as professionals or nonprofessionals for purposes of malpractice statutes of limitations, 121 A.L.R.5th 365.
Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: individual drivers, parents, owners or lessors, and passengers, 97 A.L.R.6th 375.
Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: corporations, municipalities, insurers, and employers, 98 A.L.R.6th 93.
Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - motor vehicle accident or injury cases: estates, and other or unspecified parties, 99 A.L.R.6th 1.
Tort liability of physician or hospital in connection with organ or tissue transplant procedures, 38 A.L.R.7th Art. 5.