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Orr v. River Edge Community Serv. Bd.

The criminal prosecution of the driver who struck and killed the plaintiff's husband did not toll the 2-year statute of limitation for the plaintiff's wrongful death action, since the driver was not named as a defendant in that action.

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Georgia Orr filed a wrongful death suit under the Georgia Tort Claims Act against River Edge Community Service Board “River Edge” and the Department of Behavioral Health and Developmental Disabilities collectively, the “Defendants” more than four years after her husband was struck by a van driven by a River Edge employee and killed. The Defendants filed a motion to dismiss on the grounds that Orr’s ante litem notice was not timely and her complaint was barred by the two-year statute of limitation. The Defendants also moved to dismiss and sought summary judgment based on the prior pending action rule OCGA § 9-2-44 a.1 The trial court granted the Defendants’ motions and dismissed Orr’s lawsuit, finding that it was time-barred and subject to abatement. Orr appeals, contending that 1 the statute of limitation was tolled by the pending criminal prosecution of the van’s driver and 2 her lawsuit was not abated under the prior pending action rule. For the reasons that follow, we affirm the trial court’s ruling.

Whether a cause of action is barred by the statute of limitation is a mixed question of fact and, where the facts are not in dispute, the question is one of law for the court. See McGhee v. Jones, 287 Ga. App. 345, 347 2 652 SE2d 163 2007.

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