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    (Or, “What’s this I keep hearing about ‘Sovereign Immunity’?”)

    Many people are injured by agencies of the State of Florida, the County or City. When that happens, they wonder, “Can I sue the State of Florida or the government for personal injury?”

    The short answer is Yes, you can.  But the long answer is more complicated.  Let’s start here.

    First, traditionally, the states, cities and counties were immune from lawsuits. It was a carry over from the days of English common law where you could not sue the crown (King or Queen). So although we had a revolution and the United States formed its own, new government, devoid of royalty, there are a few vestiges of that even today. This is known as Sovereign Immunity (the “sovereign” – governmental entity – starts out being immune from suit).

    Suing the state of Florida

    Florida has a Waiver of Sovereign Immunity Act, Florida Statutes §768.28.  The law waives sovereign immunity for personal injuries but only in a limited way. There is a $200,000 limit on any claim, with a cap of $300,000  for all claims arising out of the same event. That means in cases where several people are hurt or killed, there will be a total limit of $300,000.

    The sovereign is not responsible for policy-making decisions, only those acts that are considered “operational” in nature.  One way of looking at it is this way: The decision on whether to put up a stop sign at an intersection is immune from lawsuit.  But once the decision to install it is made, if it is put in wrong, not maintained or itself causes a harm, there can be a claim.

    Sovereign immunity cases in Florida have special rules in addition to the limits on recovery.  There has to be written notice to the proper agency and the state within three years, and the agency has 6 months to admit or deny the claim.  If 6 months passes, it is considered denied and a lawsuit can be filed. 

    There are other specific requirements in the law in terms of information that must be provided with the notice.  

    The frustrating part of this is that many states completely waive their immunity.  States like New York treat governmental agencies as private businesses for purposes of personal injury litigation.  And with good reason. 

    Cities, states and counties not only do much of what a private business would do, they are capable of causing great harm to people.  When a garbage truck backs up over a child, when a police car is speeding through an intersection against a red light, or when dangerous playground equipment injuries school kids, the injuries can be catastrophic. 

    Without the ability to bring a lawsuit there is no accountability.  Why would an agency change the way they do things if they are above the law?

    Here in Florida sovereign immunity is a terrible doctrine that hurts all Floridians and visitors.  In addition to the government agencies themselves, the Florida Legislature has passed laws giving private entities “sovereign immunity” privileges as if they were governmental bodies.  These include private charter schools, the South Florida Fair, and some hospitals and doctors.  

    Is there a way around or beyond the $200,000 cap on cases against the State or government?  Yes, but it’s not pretty or easy.  The state allows for as process called a Claims Bill. 

    To get a claims bill, you will need legislators to draft such a bill seeking compensation above and beyond the sovereign immunity limit.  It is usually done after a trial and judgment has been entered, and after all appeals have been exhausted.  

    If the judgment is larger than the cap, you can seek a claims bill.  But after a bill is filed, it will be sent to a special master who will re-examine the facts and circumstances, there will be hearings, and most claims bills die in committee. 

    If it does not, most special master or referee recommendations are at a reduced amount of what the award was.  The legislature (House or Senate or both) may take a recommended amount and reduce it.  Both the House and Senate must pass the exact same bill and then the Governor must sign it.  There are very few claims bills that are passed and signed each year.

    Keep in mind that Cities, Counties and the State generally have their own legal departments, so they will just litigate the case through the court system knowing that on their worst day they will not have to pay more than $200,000.  That leaves them in a position where they will rarely voluntarily pay their full liability amount.

    So the next time you see a County truck driving by, or you watch a City forklift raising heavy construction supplies, or see State Department of Transportation working on a roadway, remember that they have very low limits of responsibility if they injury or kill our citizens. 

    The next election you might want to tell your legislator that sovereign immunity is wrong and should be abolished, or at a minimum the limits of responsibility raised to a reasonable amount like $1 million with a yearly inflation adjustment (as many other states do).

    When it comes to suing the federal government, or any of its agencies, there is no cap like there is in Florida.  But there are other limitations. In that circumstance, known as the Federal Tort Claims Act (28 U.S.C §2671), the case must also be brought only following proper written notice. In the administrative phase, a specific document must be filed with the government (known as a Form 95).

    Once you get past that administrative procedure, you would file suit in federal court.  The cases are defended by the United State Attorney.  You do not get a jury trial – the case is heard by a federal district judge, who alone decides the case.

    There are many examples of Federal Tort Claims Act cases, which can include anything from medical malpractice at military hospitals to Federal Aviation Administration errors that cause plane crashes.  

    Either way, it pays to avoid situations where it pits YOU against a governmental hazard.

    Article by:

    John Leighton

    A nationally-recognized trial lawyer who handles catastrophic injury and death cases. He manages Leighton Law, P.A. trial lawyers, with offices in Miami and Orlando, Florida. He is President of The National Crime Victim Bar Association, author of the 2-volume textbook,Litigating Premises Security Cases, and past Chairman of the Association of Trial Lawyers of America’s Motor Vehicle, Highway & Premises Liability Section. Having won some of the largest verdicts in Florida history, Mr. Leighton is listed inThe Best Lawyers in America (14 years), “Top Lawyers” in the South Florida Legal Guide (15 years), Top 100 Florida SuperLawyer™ and Florida SuperLawyers (14 years), “Orlando Legal Elite” by Orlando Style magazine, and FloridaTrend magazine “Florida Legal Elite


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