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Waiver of Sovereign Immunity in Florida: When the “King” can be sued

Posted by Robert E. Heyman | Oct 30, 2010 | 0 Comments

At common law, no government could be sued for damages by one of its citizens, no matter how egregious the negligence by a government agent or employee may have been. “The King can do no wrong” was the operative phrase which insulated governments from liability since Medieval times.

In Florida, that changed in 1975, when the legislature enacted Florida Statute 768.28 which was entitled “Waiver of Sovereign Immunity in Tort Actions; Recovery Limits; Limitations on Attorney Fees; Statute of Limitations”. This enactment at least partially opened the door to negligence lawsuits against government agencies and set up strict guidelines under which such lawsuits must proceed.

Pursuant to Section 768.28 the government may be held liable for the negligent actions of its agents or employees ( while acting within the course and scope of their employment) under the same circumstances that a private individual would be liable for property damage, personal injury or wrongful death. In short, the law applied the existing common law of torts that applies to all of us to the government. Nothing more, nothing less. Trianon Park Condominium Association, Inc. v Hialeah, 468 So2d 912 ( Fla 1985).

While the standard 4 year Statute of Limitations still applies, some specific rules were also imposed by the new law. In all cases, the claimant is required, within 3 years of the incident, to file a claim in writing to the involved agency and to the Florida Department of Financial Services. Upon receipt of the claim, the agency has 6 months ( 90 days in medical malpractice claims) to evaluate the claim and either deny or offer to settle the claim before the claimant can file suit. The failure of the agency to respond within those time frames is deemed a denial.

Under the Federal statute which permits lawsuits to be filed against the government ( the Federal Torts Claims Act), claims are specifically excluded where the government agent or employee's actions involved policy making, planning or “judgmental” functions. The logic being that such an exception is necessary to enable the government to make basic policy decisions without the threat of liability. Permitting lawsuits under those circumstances would undoubtedly result in more gridlock than we already witness in the absence of such claims.

In response to this concern on the state level, the Florida Supreme Court, in Commercial Carrier v Indian River County 371 So2d 1010 (Fla 1979), imposed the same standard contained in the FTCA. Policy decisions remain protected, ministerial ones are not. For example, a city's decision concerning where to place a bus stop shelter is immune from suit. If that shelter is not properly maintained and thereafter collapses and causes injury, a claim is permitted.

The statute also “caps” the damages which can be recovered to $200,000 per person and $300,000 per incident. While a judgment greater than those limits can be awarded, the Florida Legislature would have to approve any excess payment by passing a specific “claims bill”. A very rare occurence, given the recent focus on reducing state and local budgets.

Should you believe you have a potential claim against a government agency, do not delay seeking legal advice. The pre-suit requirements of
Chapter 768.28 are strict and can bar an otherwise meritorious claim for damages if not followed properly.

While the “King” has now permitted himself to be sued, he still makes and enforces the rules to the letter.

About the Author

Robert E. Heyman

Bio Robert E. Heyman was born in Providence, RI, and grew up in Barrington, RI. He graduated from Barrington High School in 1974, and earned the rank of Eagle Scout. Following high school graduation, Mr. Heyman attended Northfield-Mt. Hermon Academy in Northfield, MA and thereafter attended co...


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