Harrison v. McAfee, A16A0648

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtPeterson, Judge.
Citation788 S.E.2d 872,338 Ga.App. 393
PartiesHarrison v. McAfee et al.
Docket NumberA16A0648
Decision Date07 July 2016

338 Ga.App. 393
788 S.E.2d 872

McAfee et al.


Court of Appeals of Georgia.

July 7, 2016

788 S.E.2d 873

Jerry A. Lumley, Macon, for Appellant.

Thomas Christopher Grant, Ryan Nicholas Florio, Atlanta, Ronald Scott Masterson, for Appellee.

Peterson, Judge.

338 Ga.App. 393

It is often said that “nothing good happens after midnight.” See, e.g., MacFall v. City of Rochester , 746 F.Supp.2d 474, 477 (W.D.N.Y. 2010). As further support for this proposition, it was well after midnight when a masked man burst into the Shamrock bar and shot

338 Ga.App. 394

John Harrison in the arm. The masked man was never found. More than two years later, Harrison filed a premises liability lawsuit against the bar's alleged owners, which the trial court dismissed as time-barred by the two-year statute of limitations applicable to personal injury claims. Harrison argues that his lawsuit is timely under OCGA § 9–3–99, which tolls the limitations period for claims filed by crime victims, and that we should overrule our precedent that interprets that statute as applying only to claims filed against the alleged perpetrator. Because our prior decisions misinterpreted the statute, we agree, overrule our prior decisions, and reverse.


The pertinent evidence is undisputed. Harrison was shot in the arm on June 16, 2011, while patronizing a Macon area restaurant and bar named the Shamrock. As far as the parties know, the shooter, who was part of a group of masked men apparently attempting to rob the bar, has yet to be arrested or prosecuted. On August 14, 2013, Harrison filed a lawsuit against Dargan McAfee, alleging that McAfee owned and operated the bar at the time of the shooting and had been negligent in maintaining the premises. In his answer, McAfee raised as affirmative defenses (1) Harrison's failure to join as a party Twisted Shamrock, Inc., a corporation McAfee formed to own the bar, and (2) the complaint was time-barred by OCGA § 9–3–33's two-year statute of limitations for personal injury cases. McAfee also filed a motion to dismiss on the basis that Harrison's claim was time-barred, but withdrew the motion after Harrison amended his complaint to allege

788 S.E.2d 874

tolling under OCGA § 9–3–99 based on his status as a crime victim. With permission of the trial court, Harrison filed a second amended complaint adding Twisted Shamrock as a defendant.

The defendants moved for summary judgment on the ground that Harrison's claims were time-barred. In response, Harrison argued that his suit was filed within the time period permitted under OCGA § 9–3–99 for torts arising from a crime. He argued that this Court's decisions holding that OCGA § 9–3–99 applies only to crime victims' suits against the alleged perpetrators were wrongly decided. Alternatively, Harrison argued that a different provision, OCGA § 9–3–94, tolled the limitations period as to his claim against Twisted Shamrock, because the company's administrative dissolution several years prior to the shooting had rendered the entity effectively absent from the state. The trial court rejected both arguments and granted summary judgment for the defendants. Harrison appeals the trial court's rulings on both OCGA § 9–3–94 and OCGA § 9–3–99, explicitly urging us to overrule our precedent that restricts the application of OCGA § 9–3–99 to suits against alleged perpetrators.

338 Ga.App. 395


Whether a cause of action is barred by the statute of limitations generally is a mixed question of law and fact, but the question is one of law for the court when the facts are not disputed. McGhee v. Jones , 287 Ga.App. 345, 347, 652 S.E.2d 163 (2007). The plaintiff bears the burden of establishing that a statute of limitations has been tolled. Orr v. River Edge Cmty. Serv. Bd. , 331 Ga.App. 228, 230, 770 S.E.2d 308 (2015). With certain exceptions, “actions for injuries to the person shall be brought within two years after the right of action accrues[.]” OCGA § 9–3–33. That limitations period may be tolled for actions by crime victims under OCGA § 9–3–99, enacted by the General Assembly as part of the “Crime Victims Restitution Act of 2005.” Ga. L. 2005, pp. 88–89, §§ 1, 2. The statute provides in full:

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years, except as otherwise provided in Code Section 9–3–33.1.1

OCGA § 9–3–99.

a. Our treatment of OCGA § 9–3–99 to date

The Georgia Supreme Court has not addressed whether OCGA § 9–3–99 applies to lawsuits against those who have not been accused of crimes against the plaintiff.2 Beginning with passing dicta and evolving to explicit holdings, our Court has said that this tolling statute applies only to a crime victim's claims against someone accused of committing the crime that forms the basis for the suit:

• In 2007, we described OCGA § 9–3–99 in a string cite as “tolling due to pending criminal prosecution of defendant.”

338 Ga.App. 396

DeKalb Med. Ctr. v. Hawkins , 288 Ga.App. 840, 847 (2) (c) n. 6, 655 S.E.2d 823 (2007). The plaintiff in that case did not claim crime victim status or cite OCGA § 9–3–99 as a basis for tolling in his lawsuit, however, see id. at 840–43, 655 S.E.2d 823, and the reference clearly was dicta.

• In Valades v. Uslu , 301 Ga.App. 885, 888–89, 689 S.E.2d 338 (2009), we rejected the plaintiffs' argument that OCGA § 9–3–99

788 S.E.2d 875

tolled the time for filing their false arrest and other claims against a county and one of its police officers. We explained that “[t]he statute's plain language tolls the statute of limitation for any cause of action in tort brought ‘by the victim of an alleged crime’ while the prosecution of the defendant is pending, for a period not to exceed six years.” Id. (emphasis in original). Because the defendant officer had not been prosecuted for any crime based on the incident in question, we held that OCGA § 9–3–99 did not toll the limitations period. Id. at 889 (1), 689 S.E.2d 338. Our opinion did not make clear on what basis the plaintiffs took the position that they were “victims” within the meaning of the statute, but the prosecution of the plaintiffs (for obstruction of an officer, resulting in acquittals) was the only prosecution mentioned therein. Id. at 887 (1), 689 S.E.2d 338. We also did not identify any language of the statute, plain or otherwise, that limited its scope to claims against a prosecuted defendant.

• The following year, we followed Valades in rejecting a plaintiff's argument that OCGA § 9–3–99 tolled the time for filing an ante litem notice regarding his lawsuit against a county and its sheriff. Columbia Cty. v. Branton , 304 Ga.App. 149, 152–53, 695 S.E.2d 674 (2010). The plaintiff sued the county and sheriff over the death of his wife, killed by a motorist who was then prosecuted for felony murder based on the motorist's felony attempt to elude a sheriff's deputy. Id. at 159–51, 695 S.E.2d 674. The plaintiff's suit apparently was based on evidence that the deputy had pursued the motorist at a high rate of speed. Id. at 150, 695 S.E.2d 674. We quoted Valades and held that “[b]ecause the county defendants were not criminal defendants in a prior prosecution, OCGA § 9–3–99 does not toll the time for filing the ante litem notice[.]” Id. at 152–53 (1), 695 S.E.2d 674.

• In Mays v. Target Corp. , 322 Ga.App. 44, 743 S.E.2d 603 (2013), we rejected as non-binding dicta statements in Valades about the plain language of OCGA § 9–3–99. Id. at 46 n. 2, 743 S.E.2d 603. We nevertheless reaffirmed that OCGA § 9–3–99

338 Ga.App. 397

tolls the limitations period only for suits brought against persons accused of crimes of which the plaintiff is a victim. Id. at 46, 743 S.E.2d 603. The plaintiff had alleged in her lawsuit against a retailer that the defendant's employee had pleaded guilty to a criminal offense after he captured her image with a cell phone while she was changing in a store dressing room. Id. at 44, 743 S.E.2d 603. Finding the statute was “ambiguous as to whether it tolls the limitations period for a crime victim's cause of action against the person accused of the crime only,” we relied on language in the caption of the enacting legislation that said a purpose of the legislation was to “provide for a statute of repose in certain tort actions brought by victims of crimes against the person accused of such crimes .” Id. at 46, 743 S.E.2d 603 (emphasis in original) (quoting Ga. L. 2005, pp. 88–89, § 1).


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