Insurers covering property in Georgia could be on the hook for personal injuries occurring on the premises if the property owners and property managers do not fulfill their duty to exercise ordinary care in keeping their premises and approaches safe, pursuant to the state’s premises liability law, O.C.G.A. § 51-3-1. In 2023, the Georgia Supreme Court ruled in Georgia CVS Pharmacy, LLC v. Carmichael that this duty extends to exercising ordinary care to protect invitees from reasonably foreseeable and preventable criminal acts.

For personal injury claims, the statute of limitations in Georgia is two years. The two-year statute of limitations is measured from the date of injury, and a lawsuit filed after the expiration of the statute of limitations is subject to dismissal.

However, in negligent security cases, sometimes the statute of limitations is extended if there is a criminal prosecution. O.C.G.A. § 9-3-99, the statute that governs the tolling of limitations for tort actions while criminal prosecution is pending, 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.

In short, if there is a criminal prosecution related to the underlying criminal act that forms the basis of a plaintiff’s lawsuit, the statute of limitations can have up to an additional six years added, meaning that a plaintiff could file their lawsuit as late as eight years after the actual incident occurred.

However, the tolling of the statute of limitations is not absolute. According to case law, a plaintiff who seeks to take advantage of the statute of limitations tolling bears the burden of establishing that they are entitled to such tolling.

Which Plaintiffs are Entitled to Tolling?

In determining whether a plaintiff is entitled to tolling of the statute of limitations, a claim analyst can check to see if the following facts are true:

• The underlying crime that forms the basis of the plaintiff’s lawsuit was charged by law enforcement.
• If the victim was an adult when the crime happened, the underlying crime occurred no more than eight years before the complaint was filed.
• If the victim was a minor when the crime happened, the complaint either was filed not more than two years after they turned 18, or if the criminal prosecution is still pending, was filed not more than two years plus the remaining time of the criminal investigation, not to exceed an additional six years after they turn 18.
• The time between the final resolution of the criminal prosecution and the filing of the complaint is no more than two years.
• The plaintiff is not the one charged with the crime.
• The plaintiff is not a family member of the victim of the crime bringing a wrongful death claim.
• The plaintiff did not engage in mutual combat.

If all of the foregoing statements are not true, a plaintiff’s claim might not be entitled to tolling under the statute of limitations and could be subject to dismissal.

Why Is This Significant?

To be entitled to tolling of the statute of limitations, a plaintiff must demonstrate that there was a criminal prosecution and the prosecution is either still pending or ended so recently that the statute of limitations did not expire prior to the filing of the lawsuit, and that the plaintiff meets the definition of a victim under the statute. Accordingly, the plaintiff must be the actual person injured or the estate of the person injured, and the plaintiff cannot have been charged with the alleged crime or have been engaged in mutual combat.

The application of this rule is of particular interest in cases where there is a potential defense based on the plaintiff engaging in mutual combat. A plaintiff who engaged in mutual combat is also not a victim under the statute O.C.G.A. § 17-14-2(b), which provides in pertinent part that a “‘[v]ictim’ shall not include any person who is concerned in the commission of such unlawful act.” O.C.G.A. § 16-2-20 has been interpreted to define those “concerned in the commission of an unlawful act” to include individuals engaged in or assisting in acts of mutual combat.

A motion for summary judgment on a statute of limitations defense still requires issues of disputed fact to be viewed in the light most favorable to the nonmovant. However, a plaintiff may not survive summary judgment merely on speculation or the contents of their pleadings. Where a plaintiff wishes to take advantage of statute of limitations tolling and there is a legitimate mutual combat defense, the plaintiff must present some evidence that they did not engage in mutual combat. This burden can be almost impossible for an estate to satisfy, as the estate was not present at the time of the incident and generally lacks first-hand knowledge of precisely what happened.

Being aware of when the statute of limitations is tolled and when it is not tolled may assist in dismissing many claims that plaintiffs might assume are tolled.

John “Jack” McCall is a civil defense attorney at Swift, Currie, McGhee & Hiers LLP in Atlanta, Georgia. His practice focuses on the defense of premises liability claims, including cases involving slip and falls, defective construction, elevator malfunction and negligent security.

Read more on the Carmichael case and other negligent security/premises liability cases.

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Georgia

ATLANTA, Ga. (Atlanta News First) – Just one day left until Georgians go to the polls for the May primary. Candidates are competing within their own party to win the right to compete for jobs in the November general election.

As of Friday, the final and busiest day of Georgia’s three-week early voting period, the Georgia Secretary of State’s Office said around 513,000 people had already voted.

Some 65,000 of those voters cast absentee ballots, but because of delay issues at Georgia’s U.S. Post Office locations, officials recommend checking on the Secretary of State’s ballot tracker page to make sure your absentee ballot got where it needed to go.

“If it has not been accepted, make a plan to go to your polling location to vote on Tuesday,” said Gabriel Sterling, chief operating officer of the Georgia Secretary of State’s Office. “We were in really bad shape with the USPS but our office has really put the hammer down on them and they’ve put together an action plan, brought about 150 employees, redeployed them in the state and out of the state.”

As always, bring your ID to your polling place, and unlike early voting, make sure you go only to your assigned precinct to vote.

A number of big races are on ballots across metro Atlanta, perhaps none more so than in Fulton County.

Sheriff Patrick Labat is facing a number of challengers, even from some former deputies of his, as is Fulton County Superior Court Judge Scott McAfee, the judge overseeing the election indictment case against former President Donald Trump. He faces a challenge from attorney and radio host Robert Patillo.

One of the day’s most-watched races will be for Fulton County district attorney. Incumbent Fani Willis, the prosecutor behind the election indictment case, is facing attorney Christian Wise Smith, who on Monday called for Willis’ immediate resignation. He said a U.S. Senate inquiry into Willis’ misuse of state and federal funds meant for a youth gang prevention program and sexual assault survivors program, while still only accusations, was troubling.

“The role of the district attorney is to protect the community in which it serves, not to steal resources intended to help rape victims and our youth,” said Wise Smith. “We need to get the office back on track.”

Another key race that will appear as non-partisan on all Georgian’s ballots is for a seat on the state Supreme Court. Incumbent Justice Andrew Pinson, an appointee of Gov. Brian Kemp, was endorsed by the governor at the Capitol on Monday.

Who is on the ballot in the Georgia 2024 primary?

The race has attracted attention after Pinson’s challenger, John Barrow, stated he’d rule to protect abortion rights if the state’s controversial six-week abortion ban comes before the court.

“We can keep a justice system that’s fair and impartial,” said Pinson. “Or we can have a system of partisan politicians in black robes.”

Copyright 2024 WANF. All rights reserved.

Georgians will head to the polls Tuesday for the final day of voting on contests that will settle several races and tee up others for matchups in the November election.

Some races, like the five-way competition to replace outgoing Congressman Drew Ferguson, are likely to go to a June 18 runoff election.

Many of the legislative races on the ballot will be all-but-decided thanks to freshly drawn district lines designed by GOP mapmakers to give up little ground in both chambers.

Even with several high-profile departures, many of the faces that return next year will be familiar. In the House, nearly 40% of Republican and more than 30% of Democratic incumbents have no challengers. In the Senate, those numbers are 42% for Republicans and 43% for Democrats.

Still, the margins are expected to tighten slightly in favor of the Democrats after last year’s redistricting process.

“I doubt that (Democrats) lose any ground,” said University of Georgia political science professor Charles Bullock. “Their hopes for a major pickup were dashed with the maps that Judge Jones signed off on, but maybe a couple of districts in middle Georgia might be more attainable for them.”

Federal Judge Steve Jones threw out district maps drawn in 2022 because he said they illegally diluted the voting strength of Black Georgians. He ordered GOP lawmakers to create seven new Black majority districts, including five in the House and two in the Senate. Democrats bitterly criticized the strategies used to create those maps, but Jones ultimately approved them.

“Now, to move further and further into the decade, districts that may have been safe when they were drawn for Republicans may begin to change,” Bullock.

This year, though, is probably a bit early for any surprise shifts. Bullock pointed to the 2018 election when Democrats flipped about a dozen legislative seats, happening several years after that decade’s redistricting.

Once again, most of the focus this year will be on the House where Democrats have been able to chip away at the GOP’s dominance in the chamber in recent cycles.

House Democrats

Democrats in the House are pretty sure they’ll be able to flip at least one seat – the one occupied by Republican Rep. Mesha Mainor, a former Democrat who joined the GOP party last year.

Mainor’s party switch raised hackles among Democrats last summer. She left the party after supporting a school voucher policy the Democrats opposed. Her Atlanta district went nearly 90% for Joe Biden in 2020, according to the City University of New York’s Redistricting and You.

Five Democrats signed up to face her in the fall, including Corwin CP Monson, an alleged former stalker. Monson, who denies stalking Mainor, did not respond to an interview request.

Bryce Berry, a recent Morehouse College graduate and middle school math teacher in Atlanta Public Schools, said he is young but already has plenty of political experience, including serving as deputy political director of the Democratic Party of Georgia and president of the Young Democrats of Georgia.

His website touts endorsements from high-ranking Atlanta Democrats, including state House representatives, state senators, school board members as well as groups like the Atlanta-North Georgia Labor Council.

Berry said his top issues if elected will be college affordability, expanding Medicaid and spurring more affordable housing.

“I’ve done more in 23 years, almost 23 years, than most of us have done in 90,” he said. “I bring energy and vitality that the district needs. This is a new progressive voice. I think, ultimately, the district is just tired of being slighted and tired of being embarrassed by current leadership. They want steady, new, progressive, bold leadership that’s going to fight for them. Someone that has relationships and that’s going to do the work.”

Adalina “Ada” Merello, a waitress and graduate student, said she’s been involved with political activism for the past 25 years, including working with state legislators in New York and Oregon as an intern and public service scholar.

She said she was inspired to run when she heard a radio story about Mainor’s party swap.

“I heard that my representative had become a Republican, so that just floored me,” she said. “This is a 91% Biden district, so I was just shocked. And as a woman of color, I was shocked.”

Merello said she hopes to oppose voucher bills like the one Mainor supported and the one that passed this year.

She said she’s also interested in legislating to benefit renters, but the issue at the forefront of her campaign is mental health. Merello, who says she is bipolar manic depressive with PTSD, campaigns alongside Angel, a 9-year-old long-haired chihuahua and certified service dog.

Business owner William “Leonard” Watkins and Chiropractor Dawn Samad did not respond to requests for comment. According to Berry, Samad suspended her campaign to support his.

In DeKalb County, the Democratic ballot features the only race pitting two incumbents against each other.

Reps. Saira Draper and Becky Evans are colleagues who ended up in the same primary after GOP mapmakers drew them into the same district during last year’s court-ordered redistricting do-over. Other incumbents were paired up in such a way, but Draper and Evans were the only duo who decided to battle it out at the ballot box.

For Draper, most of the new district is familiar turf for the first-term lawmaker. For Evans, who was elected to the House in 2018, about 70% of the district is new to her.

“I felt like I had a big X on my back, but it’s OK. You know, when I was elected, it was 100% new voters and I defeated a 16-year incumbent by a 30-point margin,” Evans said. “So I just have to reach the voters, and we’re gonna let the voters decide.”

Draper said the forced matchup is a reflection of the GOP’s hold on both chambers and the governor’s mansion. She argues the new districts had a “punitive element” to them after last year’s federal ruling found that an earlier set of maps illegally diluted the voting strength of Black voters.

“Until we flip the House, or win the governor’s mansion, we are very much at the whim of the desires of the majority party,” Draper said.

Draper said she decided to run because she argues she is the best candidate on “democracy and diversity.” She is known for her work on voting rights and is also a person of color who is a member of the Hispanic and AAPI caucuses, and she is one of the few women lawmakers with young children in Georgia.

“I’m able to offer a perspective that I think is very much needed in the Legislature,” Draper said.

Evans said she is proud of her endorsements from environmental groups like the Sierra Club, which is a nod to her focus on trying to accelerate the state’s transition to a clean energy economy and other progressive environmental issues.

“I am campaigning on my proven track record of delivering for DeKalb County,” Evans said, noting that she has been in office longer than Draper.

Some notable departures for House Democrats include the retirement of Rep. Pedro Marin, who was one of the first Hispanic lawmakers in Georgia, and the retirement of House Minority Leader James Beverly. Reps. Roger Bruce, Gloria Frazier and Mandisha Thomas will also not be returning.

House Republicans

On the GOP side of the House, most lawmakers are ensconced in safely conservative districts, but there could be some surprise shakeups Tuesday as 14 incumbent Republicans will face at least one Republican challenger.

A few GOP-held seats are guaranteed to change hands, and one already has.

Earlier this month, former Muscogee County Republican Party Chair Carmen Rice defeated rival Sean Knox to replace the late Rep. Richard Smith, who died during this year’s session. Rice will finish out Smith’s term but will need to be re-elected in November before she can vote on a bill.

Reps. J Collins, Jodi Lott, Clay Pirkle and Penny Houston all represent conservative-leaning districts, and they are all hanging up their lawmaker hats after this year.

In Columbia County, Lott’s retirement spurred a five-way race on the Republican side. The winner will face Democrat Heather White, a former Chief Warrant Officer Three in the Army, in November with an advantage in the district where 63% of voters selected former President Donald Trump in 2020.

Retired educator Paul Abbott says people there want conservative leadership.

“It’s still a conservative base here,” he said. “They still want taxes lower. They want election integrity. They want Trump in the White House. They all kind of want the same things. I haven’t heard anything out of kind of that general thing, the DEI, CRT, out of schools, that type of thing. So it’s pretty much just kind of some core things that people talk about.”

Abbott, who served for 22 years in the Army and Georgia National Guard, said education reform will be a top priority and he will work to get more resource officers in schools and keep transgender girls out of girls’ sports.

“In the past 10 years, the past decade, there’s been a 30% reduction of teachers coming out the pipeline from colleges, and we need to work on making the teaching profession appealing, and we need to work on supporting teachers in the classroom and giving them a voice,” he said. “There’s a lot of work we’ve got to do keeping Marxist ideologies from being taught to kids as indoctrination. Yeah, there’s a lot of work to do in education by all means.”

David Byrne, a cybersecurity consultant, said the difference between him and the rest of the field can be seen on his website, where he has 65 pages of policy proposals for issues from drug prices to immigration to inflation.

Byrne, who served as a cyber operations officer in the U.S. Army National Guard, said his top three priorities are restricting homeownership in Georgia to U.S. citizens and permanent residents, requiring health insurance companies licensed in Georgia to pay back 85% of premiums as treatment or a rebate and taking all names and party information off of ballots and making all candidates write-ins.

“I get all positive reactions,” he said. “To be honest, you know, some people don’t care. Some people just want to ask me about stolen elections. And it kills me a little bit because I try not to talk too much about the past, you know, we can’t change it. It’s important, but we can’t change the past. But for the most part, I would say, you know, I get some very positive reactions for what I’m trying to do or what I would like to do.”

President Joe Biden’s narrow win in Georgia was confirmed through three different vote tallies, including a recount and a hand count.

Ben Cairns, a former U.S. Marine and current political science professor at Georgia Military College, said conversations with his students spurred him to run.

“I always talk a lot to them about getting involved and that the youth is one of the largest populations that don’t participate,” he said. “And they oftentimes feel disenfranchised by the two political parties, not really feeling any allegiance to either one of them. And I tell them that the only way to change that is to get involved, and so I kind of felt like a hypocrite. And when Jodi Lott decided to essentially vacate her seat and not run again, open races are typically the best chance for a newcomer to get elected, so I decided now is the time.”

Cairns said he’s been incorporating his real-world campaign experience into his lessons and incorporating his knowledge of political theory into practice. He said he’s interested in working toward ending the income tax in Georgia, creating a process to remove officials who don’t uphold their oath of office and improving education, but for now, his eyes are on making it to the June 18 runoff.

“Considering that it’s a five-way race in the Republican primary, the likelihood of any one of us getting 51% outright is gonna be pretty low,” he said. “So the idea of a runoff election is probably pretty high. So the idea of making the runoff is the first thing. And with low voter turnout in primaries, as is typically the case, I think the last time I checked, the 131st had a little over 50,000 registered voters. And like 5% of them, or maybe 10% of them, voted in a primary in the last couple of cycles. So it’s a very small voter count. And when you have distinct candidates that all kind of have different strengths and weaknesses, you divide up that vote. So my real hope is just to make the top two.”

Russell Wilder, owner of a cigar and tobacco shop in Martinez, said he has been active in politics and the local community for a long time, including serving on the Columbia County planning commission, library board and green space advisory board.

Wilder said he, like most people in the 131st District, has been satisfied with Lott’s job for the past nine years, and he hopes to continue that.

“When I talk one-on-one with people, you know, what’s your issues, what’s your concerns, as far as what the state Legislature can do, they don’t generally bring me a whole lot,” he said. “Some of the more active folks are worried about some of these cultural issues like trans (girls) in girls’ sports and things like that come to the fore, so that’s a recurring theme. But by and large, folks in this community are real happy with the local government and the state government.”

He said his top priority will be to restrict the availability of absentee ballots.

“We’ve got in my county 17 days of early voting, three weeks of Monday through Friday and two Saturdays,” he said. “So you can work your schedule such that you can go somewhere and vote in person unless you’re deployed, away at college, out of town for extended work assignment, or you’re physically disabled, those people need an absentee ballot and I want to make sure they can get them, but if you just want one to Uber your vote so to speak like you do your food, no, not in Georgia, I’m not for that.”

Rob Clifton, a commercial general contractor also running as a Republican, did not respond to an interview request.

A prelude to the general election 

After the primary election, attention will shift to the fall when the ideological differences will be starker.

Republicans are hoping to hold on to their majorities in the House and Senate, and they’re getting an assist from Gov. Brian Kemp who has said his focus will not be on the presidential election but on the state legislative races.

Georgians were still casting ballots in the March presidential primary when Kemp told reporters that while he would support the eventual GOP presidential nominee, his main focus will be on the down-ballot legislative races.

“That is paramount for us to hold our majorities here in this building,” Kemp told reporters in March. “To continue this great roll that we’ve been on with three record years of economic development, pay raises to our teachers and our men and women in law enforcement, rural broadband, making sure that no matter somebody’s zip code that they’re going to have economic opportunity and prosperity in our state, and that is going to be my main goal between now and November.

“My belief is if we do that well as Republicans and tell people what we’re for and stay focused on the future, we’ll have a great night, and that’ll be all the way up and down the ticket,” Kemp said at the time.

Georgia Democrats, though, are ready to remind voters of where they argue GOP leaders have fallen short and failed Georgians.

Senate Republicans flirted with the idea of advancing a form of full Medicaid expansion in the 2024 legislative session but the proposal was blocked in committee in the final days. But another measure that did survive creates a commission that could tee the issue back up for next year. Kemp, who has defended his partial Medicaid expansion, has said he continues to oppose full expansion.

“I think if the people are paying attention, and it appears to me that they are paying attention to how hard we’re working to get Medicaid expansion for those people who need it so badly, it’ll make a difference when they go to the polls,” said retiring Senate Minority Leader Gloria Butler, a Stone Mountain Democrat. “They will look at who’s doing what. Are the Democrats for us, or are the Republicans fighting for us? And they will come up with the Democrats are really putting that extra, extra step into trying to make our lives better. And so I’m counting on that.”