Orr v. River Edge Community Service Board
331 Ga. App. 228
Ga. Ct. App.2015Background
- On Feb. 5, 2007, River Edge employee Francena Chisholm‑Moss, driving a work van, struck and fatally injured Elijah Orr; she received a traffic citation and a warrant that was later dismissed.
- Georgia Orr (widow) did not give ante litem notice to River Edge until Feb. 17, 2010, to the Department of Behavioral Health and Developmental Disabilities until Mar. 8, 2010, and filed suit on Oct. 26, 2011—more than two years after the accident.
- Orr sued the state entities (River Edge community service board and the Department) under the Georgia Tort Claims Act; she did not sue the driver, Chisholm‑Moss.
- Defendants moved to dismiss contending Orr’s ante litem notice and complaint were untimely under the two‑year statute of limitations and that the prior pending action rule required abatement; trial court dismissed the suit as time‑barred and abated.
- Orr argued the tort statute of limitations was tolled by the pending criminal prosecution of Chisholm‑Moss under OCGA § 9‑3‑99 and that the prior pending action rule did not bar her case; the Court of Appeals affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 9‑3‑99 tolls the two‑year tort statute for suits against state entities | Tolling applied because criminal prosecution of driver was pending until Feb. 2011 (statute of limitations for criminal charge) | § 9‑3‑99 tolling applies only where prosecution is pending against the defendant sued; defendants were never criminally charged | Held: No tolling. § 9‑3‑99 applies to suits against criminal defendants; state entities were never charged, so claim against them is time‑barred |
| Whether plaintiff’s ante litem notice and complaint were timely under the two‑year statute | Tolling excused delay; notice and suit timely if tolling applied | Statute ran in 2009 (two years after accident or after prosecution termination), so notice and suit were untimely | Held: Untimely. Even without deciding exact prosecution termination date, suit against state entities is time‑barred |
| Whether the prior pending action rule required abatement | Orr contended abatement did not apply or was resolved | Defendants asserted abatement under prior pending action rule | Not reached on merits because dismissal as time‑barred was dispositive |
| Burden of proof on tolling | Orr bore the burden to prove tolling applied | Defendants argued plaintiff must prove tolling elements | Held: Plaintiff bears burden to establish tolling; she did not establish it for these defendants |
Key Cases Cited
- Mays v. Target Corp., 322 Ga. App. 44 (2013) (OCGA § 9‑3‑99 tolling applies only while prosecution of the defendant is pending)
- Valades v. Uslu, 301 Ga. App. 885 (2009) (same: tolling tied to prosecution of the defendant sued)
- Columbia County v. Branton, 304 Ga. App. 149 (2010) (joint tortfeasors are not necessarily criminal co‑defendants for § 9‑3‑99 tolling)
- McGhee v. Jones, 287 Ga. App. 345 (2007) (statute of limitation issues are mixed fact‑law; where facts undisputed, legal question for court)
- Smith v. Chemtura Corp., 297 Ga. App. 287 (2009) (plaintiff bears burden to establish that statute of limitation was tolled)