Several Georgia rules pause or extend the standard statute of limitations in personal injury cases. The two-year clock for car accident claims under O.C.G.A. § 9-3-33 looks rigid on its face, but a series of tolling statutes in Article 5 of the same chapter create exceptions for minors, mentally incapacitated plaintiffs, defendants who leave the state, defendants who conceal the cause of action, and crashes that involve criminal charges. Each exception has its own statute, its own conditions, and its own pitfalls. This article walks through the main tolling categories.
Tolling for minors and persons under disability #
The most commonly applied tolling provision protects minors and persons who lacked legal capacity when the right of action accrued. O.C.G.A. § 9-3-90(a) provides:
“Individuals who are legally incompetent because of intellectual disability or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.”
The 2015 amendment (effective July 1, 2015) substituted “intellectual disability” for the older terminology “mental retardation” in subsection (a). The substantive rule did not change; only the statutory language was modernized.
For a minor injured in a Georgia car accident, the practical effect is that the two-year clock does not start running until the minor reaches the age of majority (18 in Georgia). A child injured at age 14 has until age 20 to file a personal injury lawsuit. A child injured at age 6 has until age 20 as well, because the clock starts at the 18th birthday and runs two years.
The same tolling applies to plaintiffs who were legally incompetent at the time of the crash due to intellectual disability or mental illness. The two-year clock does not run during the incompetence and starts only when legal capacity is restored. The test for mental incompetency under Georgia case law is whether the person was unable to manage the ordinary affairs of life. Merely being upset, unclear in mind, depressed, in pain, or “out of it” is not enough to meet the standard.
A separate but related rule, O.C.G.A. § 9-3-91, addresses disabilities that arise after the cause of action accrues. If a plaintiff is competent at the time of the crash but becomes legally incompetent before the deadline expires, the limitation period stops running during the continuance of the disability. The clock resumes when the disability is removed.
Tolling when the defendant leaves Georgia #
O.C.G.A. § 9-3-94 pauses the statute of limitations when the defendant moves out of state after the cause of action accrues. If the at-fault driver in a Georgia crash relocates to another state before the plaintiff has a reasonable opportunity to file suit, the period of out-of-state absence is excluded from the two-year calculation.
The mechanics of this tolling are narrower than the statute first appears. The defendant’s mere physical presence outside Georgia is not enough; the rule requires that the defendant’s absence has practical consequences for the plaintiff’s ability to serve process or pursue the claim. Georgia’s long-arm jurisdiction under O.C.G.A. § 9-10-91 extends to out-of-state defendants whose conduct caused harm in Georgia, which reduces the practical scope of § 9-3-94 tolling in most car accident cases. The rule remains on the books and can apply when service or jurisdiction is genuinely impeded by the defendant’s relocation.
Tolling for fraud by the defendant #
O.C.G.A. § 9-3-96 tolls the statute of limitations when the defendant has been guilty of a fraud that concealed the cause of action from the plaintiff:
“If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.”
In a car accident context, this tolling is relatively rare. It would apply if the at-fault driver concealed identity (fled the scene without identification), concealed the cause of the crash (covered up a mechanical defect, a phone-use record, an intoxication test), or otherwise actively prevented the plaintiff from learning the facts necessary to bring a claim. Passive non-cooperation (refusing to admit fault, denying allegations) does not qualify as fraud for tolling purposes.
The clock starts running from the date the plaintiff discovered (or should have discovered) the fraud, not from some later date when the plaintiff fully understood its implications.
Tolling for criminal prosecutions arising from the crash #
O.C.G.A. § 9-3-99 is the most commonly invoked tolling rule in Georgia car accident cases involving criminal conduct by the at-fault driver. The statute tolls the limitation period from the date of the criminal violation until the criminal case is finally resolved, or for six years, whichever is shorter:
“The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years, except as otherwise provided in Code Section 9-3-33.1.”
In car accident terms, “crime” is broader than serious offenses. Traffic citations issued to the at-fault driver count. A DUI charge counts. A reckless driving charge counts. Even less serious violations like running a red light or following too closely, if ticketed, can trigger § 9-3-99 tolling. The Court of Appeals confirmed this broad reading in Harrison v. McAfee, 338 Ga. App. 393, 788 S.E.2d 872 (2016).
The tolling can add months or years to the standard two-year deadline. A crash in which the at-fault driver is ticketed and the case takes 18 months to resolve effectively gives the plaintiff three and a half years from the date of the crash to file the civil lawsuit. The six-year cap means the total tolling cannot exceed six years even if the criminal case drags on.
Tolling for unrepresented estates #
If either the plaintiff or the defendant dies before the lawsuit is filed and the estate is not represented (no administrator or executor has been appointed), O.C.G.A. § 9-3-92 and § 9-3-93 toll the limitation period for up to five years. The five-year tolling applies in favor of the estate when the plaintiff dies, and in favor of creditors when the defendant dies.
This tolling matters in three recurring scenarios: wrongful death cases where the family delays opening probate, claims where the at-fault driver dies before suit is filed and the heirs have not appointed an administrator, and claims where probate disputes among heirs prevent the timely appointment of a personal representative. The five-year cap is firm. Probate delays beyond five years cannot extend it further. The practical lesson is that the unrepresented-estate tolling exists as a backstop, not as a planning tool, and counsel typically push to open probate and appoint a representative well before the five-year mark.
Government defendant exceptions and ante litem notice #
Claims against government defendants (the state, a state agency, a county, a municipality, or their employees acting in official capacity) carry separate procedural requirements that operate alongside, not instead of, the statute of limitations. The Georgia Tort Claims Act, O.C.G.A. § 50-21-26, requires ante litem notice within 12 months of the loss for state-level claims. Claims against counties under O.C.G.A. § 36-11-1 require presentation within 12 months. Claims against municipal corporations (cities) under O.C.G.A. § 36-33-5 carry the shortest deadline at 6 months.
The interaction works this way: a claim against the state for a car accident caused by a state employee still has the two-year statute of limitations under § 9-3-33, but the plaintiff must also serve the ante litem notice within 12 months of the loss. Missing the ante litem notice deadline bars the claim even if the lawsuit would otherwise be timely under § 9-3-33.
Government defendants also enjoy special tolling-related rules. Minors and persons under disability still receive tolling protections under § 9-3-90, but in claims against counties under § 36-11-1, the rule is that minors or other persons under disability have 12 months after the removal of the disability to present their claims, not the full two-year period.
How tolling actually works in a claim #
Tolling exceptions are real but narrow. They protect specific categories of plaintiff and specific factual scenarios:
- Minors and persons under disability at the time of the crash (§ 9-3-90)
- Plaintiffs whose disability arises after accrual (§ 9-3-91)
- Cases where the defendant left Georgia (§ 9-3-94)
- Cases where the defendant concealed the cause of action through fraud (§ 9-3-96)
- Cases involving criminal charges against the at-fault driver (§ 9-3-99)
- Cases where either party’s estate is unrepresented (§ 9-3-92, § 9-3-93)
Each exception has technical requirements, and the plaintiff bears the burden of proving the tolling applies. The practical strategy in any Georgia car accident case is to assume the two-year deadline applies and to treat tolling as a backstop, not a primary timeline. Filing within two years preserves the claim under all scenarios. Relying on tolling without confirming it applies leaves the plaintiff exposed to a dismissal if the tolling argument fails. The companion piece on missing the statute of limitations addresses what happens when the deadline runs.
Disclaimer #
This article is published for educational and informational purposes only. It is not legal advice and does not create an attorney-client relationship between any reader and the publisher, the author, or any law firm. Personal injury law in Georgia is fact-specific, and the rules summarized here can change through new legislation, regulatory updates, and court decisions after this article’s publication date. Statutes, case citations, and procedural rules referenced in this article are summarized for general understanding; readers should consult the current official text of any law cited and should not rely on this article for the resolution of a specific legal question.
If you have suffered an injury in Georgia and want to understand how the law applies to your situation, consult a licensed Georgia personal injury attorney. An attorney can review the facts of your case, identify the deadlines and procedural requirements that apply to you, and advise you on your options under current Georgia law.
Nothing in this article should be read as a guarantee of any particular outcome, a recommendation about whether to settle or pursue litigation in any specific case, or a substitute for personalized legal counsel.