How Does the Statute of Limitations Toll for Minors and Legally Incompetent Plaintiffs in Georgia?
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O.C.G.A. § 9-3-90 gives a person who was under 18 when a claim arose “the same time after he or she reaches the age of 18 years” as anyone else, and gives the same protection to a person who was legally incompetent at that time, measured from when the disability is removed. For an ordinary injury claim, a child’s two years start on the 18th birthday. Medical malpractice and claims against governments do not follow that rule.
The rule, read from the statute
| Person | When the claim arose | Time to sue | Statute |
|---|---|---|---|
| Child | Under 18 | The ordinary period, counted from the 18th birthday | § 9-3-90(b) |
| Adult with intellectual disability or mental illness | Legally incompetent at that time | The ordinary period, counted from when the disability is removed | § 9-3-90(a) |
The text adds two conditions. First, the disability has to exist when the cause of action accrues; a person who becomes incompetent later does not fall within § 9-3-90(a) by its terms. Second, § 9-3-90(b) begins “Except as otherwise provided in Code Section 9-3-33.1”, the separate statute for claims based on childhood sexual abuse, which sets its own periods.
For example, imagine a 10-year-old hurt in a car crash. Under § 9-3-90(b), the two-year personal injury period of § 9-3-33 begins at age 18, so the deadline is the 20th birthday. The parents’ own claim for the child’s medical expenses is a different claim and is not addressed by § 9-3-90(b).
When an adult’s incompetency ends the pause
The statute counts from when “their disability is removed”. Decisions under the predecessor statute also asked whether someone could act for the person. In Cline v. Lever Brothers Co. (1971), decided under the predecessor statute, the Court of Appeals described the rule for a person made “incapable of acting for himself in carrying on his business and in prosecuting his claim”: the limitation period is tolled until the person “regains capacity to act for himself or until such time as a guardian is appointed and actually does act for him”, or until someone acting as next friend files suit. Under that line of authority, the date a guardian or conservator is appointed and acts can be the date the clock starts running.
Medical malpractice: § 9-3-73 replaces the rule
Section 9-3-73 overrides § 9-3-90 for malpractice claims:
- Incompetent adults and children five or older are “subject to the periods of limitation for actions for medical malpractice”, meaning two years from the injury and five years from the negligent act.
- A child injured before age five has two years from the fifth birthday, and no action can be brought after the tenth birthday.
In Williams v. Regency Hospital Co. (2025), a conservator sued for a mother left permanently disabled by a stroke, after the malpractice deadline had passed. The Supreme Court of Georgia held that the malpractice rule is valid, reaffirming Deen v. Stevens (2010) and rejecting the equal-protection challenge. The outer limits are explained in the five-year malpractice repose and its exceptions, and birth injuries in how birth injury claims work in Georgia.
Government notice deadlines are not paused
Section 9-3-90 extends the time to “bring an action”. A city’s 6-month ante litem notice under § 36-33-5 is not an action, and in Dates v. City of Atlanta (2025) the Supreme Court of Georgia held that “the minor tolling provision does not apply to OCGA § 36-33-5”. Only the county statute, § 36-11-1, gives minors and persons under a disability 12 months after the disability is removed. See Georgia’s ante litem notice rules.
Repose limits still apply
Tolling changes when a limitation period runs. A statute of repose is measured from a fixed event, not from the injury. For product claims, § 51-1-11(b)(2) bars a strict-liability action “after ten years from the date of the first sale for use or consumption” of the product, and the statute contains no exception for minors. A child injured by a product sold nine years earlier faces that date regardless of age; see the product liability statute of repose.
Questions that decide the date for a child or incompetent adult
- What kind of claim is it: ordinary injury, malpractice, product, or against a government?
- How old was the child, or what was the adult’s condition, on the date the claim arose?
- Has a guardian, conservator, or next friend been appointed or acted?
- Is there a repose date (product sale, negligent medical act) that arrives first?
Sources
- O.C.G.A. §§ 9-3-33, 9-3-90, 9-3-73, 36-11-1, 36-33-5, 51-1-11.
- Cline v. Lever Brothers Co., 124 Ga. App. 22 (1971)
- Williams v. Regency Hospital Co., 322 Ga. 452 (2025)
- Dates v. City of Atlanta, 321 Ga. 696 (2025)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.