Must the legal disability exist at the time of injury to toll the clock?

· 3 min read

No. Georgia law tolls a limitation period for a legal disability both when the disability exists at accrual and, separately, when a qualifying disability begins after the clock has started. Two different statutes handle the two situations, so the timing of the disability changes which rule applies rather than whether any protection exists at all.

Disabilities present when the claim accrues

Georgia’s two-year personal-injury period under O.C.G.A. § 9-3-33 generally begins when the cause of action accrues, usually the date of the injury. O.C.G.A. § 9-3-90 addresses a person who is already under a legal disability, such as being under 18 or being legally incompetent because of intellectual disability or mental illness, at the moment the claim accrues. That person gets the same period to sue after the disability is removed as anyone else would have had, so the clock effectively does not run while the disability continues.

Disabilities that arise after the clock starts

A separate provision, O.C.G.A. § 9-3-91, covers a disability that begins after the right of action has already accrued. If a person suffers a qualifying disability listed in § 9-3-90 after accrual, and the disability is not voluntarily caused or undertaken, the limitation ceases to operate during the continuance of that disability. So an adult who was competent on the day of injury but later becomes legally incompetent can still have the running period suspended, provided the incapacity is genuine and not self-inflicted to gain the benefit.

How the two rules fit together

The practical points are easy to misstate:

  • A child injured before turning 18 is protected under § 9-3-90 because minority existed at accrual.
  • An adult competent at injury who later becomes legally incompetent may be protected under § 9-3-91, because an intervening involuntary disability pauses a running statute.
  • The protection is not unlimited: the disability must be one the statutes recognize, and a voluntarily induced or feigned condition does not qualify.

Because the analysis turns on the type of disability and how it arose, the safer course is never to assume a deadline has passed without checking which provision applies.

The bottom line

The legal disability need not exist at the time of injury for tolling to be available in Georgia. Section 9-3-90 suspends the clock when the disability is present at accrual, while § 9-3-91 suspends a running period for an involuntary disability that arises afterward, so a later-developing incapacity is not automatically fatal to the claim.

This article is for general educational and informational purposes only and is not legal advice. It does not create an attorney-client relationship, and Georgia law may change. For advice about a specific situation, consult a licensed Georgia personal injury attorney.

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