Claims Against a Government Entity in Florida are LimitedPosted 21 Apr 2012 by John Phillips
It’s called sovereign immunity. It is based on the English common concept that the government cannot be sued because “the king can do no wrong.” But it’s not just the king. The king’s immunity — or impunity, as the case may be — stretches to the palace and the grounds, to the guy who cuts the royal grass, or washes the kingly car, or sells food at his majesty’s alma mater, to the Emergency Rooms and Hospitals the King deems appropriate and anyone remotely a servant of the King’s Government. If a lifeguard runs you over or a police officer writes down the wrong address and busts in your house and injures you during your resistance, if a garbage truck rear-ends you or a teacher abuses a student- the government decides if you are allowed to sue and then limits recovery to $50,000, $100,000 or $200,000 or the like.
It wasn’t the initial rule in the United States. In fact, quite the contrary is true. America was founded on the concept of government accountability to citizens. Governmental Immunity was adopted when Justice Oliver Wendell Holmes declared in 1907, “A sovereign is exempt from suit [because] there can be no legal right as against the authority that makes the law on which the right depends.” Because it makes the law it is not subject to it- sound fair?
A 1945 Supreme Court opinion declared that sovereign immunity is “embodied in the Constitution.” However, neither law professors, nor private citizens victimized by the government have ever been able to find precisely where in the Constitution this doctrine is “embodied.” Even the basic principle’s espoused in Marbury v. Madison in 1803, held, “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”
Yet, States are enacting more and more restrictive laws. For instance, the Nevada Legislature has created a limited waiver of sovereign immunity. The limitation is that there is cap of $50,000.00 per person for claims against any governmental entity. Governments are NOT accountable with such low caps.
How Does This Affect Us Here In Florida?
Let’s take Volusia County, Florida as an example. Six women have been run over by lifeguards. Lifeguards- the very people hire to protect them. And about twelve women have been run over in the State. Yet, little policy or law changes. If this were a corporation –a commercial business- the company would be subject to civil, criminal and administrative scrutiny as has drug manufacturers, car manufacturers, drug manufacturers and food manufacturers each time a recall, class action or governmental administrative agency looks its way.
Pursuant to Florida’s Sovereign Immunity Statute § 768.28, the State of Florida and its political subdivisions, such as cities and counties, has limited its liability for damages under the sovereign immunity statute such that an injured consumer may recover up to a maximum amount of damages of $200,000, and potentially another $100,000 if there are dependants. That’s it. It was just raised on October 1, 2011 from $100,000 and $200,000 respectively.
If you have suffered catastrophic personal injury in Florida due to a negligence or carelessness of any State, County, or city worker, and further, even if your medical bills alone exceed $200,000, the most you can recover from the State, County, or City responsible is $200,000 and possibly another $100,000 for your dependents.
Florida’s sovereign immunity restriction applies to almost every case of negligence filed against the State or any of its Counties or Cities, including:
* Car wreck caused by County employee causing injuries;
* Public hospital malpractice;
* Defective or dangerous city-owned property causing injuries.
If your injuries are truly catastrophic, and if your story is compelling, then there is one last method to obtain justice. It is called a “claims bill.” In order to obtain damages against the State entity in an amount above the $200,000 cap, then you must pursue a special law through the Florida Legislature. Your lawyer can coordinate the lobbyists, sponsors, committee votes, House and Senate passage, and eventually the Governor’s signature (or lack of votes and signature – it is at the government’s discretion) to make this remote possibility your reality. Further attorney’s fees are limited to 25%, so many elite attorneys won’t take the case or fight the fight.
We are fighting this fight.
Municipal Liability/Sovereign Immunity
At least 33 states’ acts limit, or “cap,” the monetary amount for damages that may be recovered from judgments against the state, and at least 29 states (often in combination with a cap) prohibit a judgment against the state from including punitive or exemplary damages.
The table below lists statutes and constitutional provisions for all 50 states and the District of Columbia relating to immunity and tort claims against the state, including:
- Constitutional provisions that establish legislative authority over sovereign immunity or tort claims issues
- Statutes and constitutional provisions relating generally to sovereign immunity or tort claims against state governmental entities
- Discretionary function exceptions to state liability1
- Misrepresentation exceptions to state liability2
- Prohibitions on punitive or exemplary damages against the state
- Monetary limitations (“caps”) on damages against the state per occurrence, per person and/or per cause of action
Limited – Sovereign immunity has not been waived but a Board of Adjustments determines claims against the state and all of its subdivisions.
Recovery of damages against government limited to $100,000 for injury or death to an individual and $300,000 aggregate per occurrence.
Claims against State may be pursued in state court. Follows Federal Tort Claims Act.
In Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), the Arizona Supreme Court abolished the doctrine of sovereign immunity in Arizona, but there still are some hurdles.
Sovereign immunity applies except that political subdivisions of state are required to maintain liability insurance or self-insurance for motor vehicles.
SOL: 6 months. Runs from date of notice of claim is served on entity. Doctrine of sovereign immunity abrogated.
6 Month SOL to give notice to municipality after discovery of injury.
2 Years (with a 90 day notice requirement) for defective roads and bridges and 2 yrs (with a 6 month notice requirement) for actions against municipality for negligence of most employees. However, under CGS7-308, there is a one year SOL for cases involving the negligence of municipal firemen (paid or volunteer), and volunteer ambulance workers (with a 6 month notice requirement).
Waived but only for actions in state court and only when claim is covered by state insurance program.
DISTRICT OF COLUMBIA
Action against the District of Columbia requires notice in writing to mayor within 6 months of injury, or police report.
Waived only when employee is acting within scope and not acting in bad faith. Allowed only up to limit of insurance coverage. Requires prior written notice within 3 years of incident, must have notice in writing after injury to municipality and department of insurance. Lawsuit can be started after claim is denied. State, or subdivision thereof waives sovereign immunity up to $100,000 per person and $200,000 per incident or occurrence.
2 Years from date or discovery. 180 days to file claim against municipalities. Infants have 120 days after majority or 6 years from injury or discovery.
1 Year ,including Wrongful Death. State has adopted an immunity statute governing when actions against the state or its political subdivisions are permitted. In certain municipal actions, notices of claim are required.
Immunity available to government entities in some limited situations. Notice required for claims against state and local governments.
2 Years for claims against state, requires written notice to State Appeal Board within those 2 years.
Abolished. State liable for damages caused by negligent or wrongful act or omission of government employee acting within scope of employment. Certain immunities remain. Medical malpractice for municipalities same as for private defendant. Government damage capped at $500,000 unless insurance for greater amount. No punitive damages against municipalities.
year SOL. Partially waived. Notice must be given to Board of Claims within 1 year of injury. Damages permitted up to $200,000 per individual and $350,000 per claim.
No immunity for state, state agency from suit and liability in contract or injury to person or property. Although special statutes do exist to limit liability and create structured payment plans. Max awards of $500,000 except as to medical care and loss of earnings.
2 Years Infant has 2 years from injury and minor has 2 years from reaching majority. Notice of claim to be filed within 180 days unless claimant is a minor in which case it is 180 days from reaching majority.
Limited waiver of state’s sovereign immunity in tort claims to extent of insurance coverage.
3 Years years for most municipal acts. Waived, but limited by statute depending on situation. Public departments and agencies, other than certain authorities and other independent agencies. Remedy does not extend to punitive damages or any damages in excess of $100,000 per plaintiff or to prejudgment interest. Small claims against housing authorities must be brought within 3 years.
Only waived by express statutory consent. State may be sued in accidents involving motor vehicles, aircraft, defective highways, maintenance of public buildings, and in some medical malpractice situations.
Abolished, but numerous special rules apply.
Partially waived and limited to $500,000. No punitive damages permitted against municipalities.
Doctrine exists, however, suits permitted for compensatory damages for injuries caused by negligent acts of public employees in operation of motor vehicles, and other specific negligent acts.
2 Years for actions against state. Claim must be filed within 2 years with State Claims Board; action must be filed within 6 months of final disposition by Board.
Waived unless otherwise provided by statute. Capped at $50,000.
Public entity is generally subject to tort liability for acts or omissions of the entity or public employees acting within scope of employment. However, some exceptions still exist.
Limited by statute.
Require notice of claim within 90 days of occurrence and commencement of suit within 1 year and 90 days of occurrence. Other Notice of Claim provisions apply to different political subdivisions and actions against the State may only be brought in the Court of Claims where a judge alone (no jury).
2 Years unless statute states otherwise.
3 Years after occurrence. 180 days to make claim against State, 1 year for death claims. Limited by statute. Requires written notice to office of management and budget.
Actions: 180 days from denial of claim. Claim must be presented within 1 year of occurrence.
Actions: 180 days from denial of claim. Claim must be presented within 1 year of occurrence.
Damages limited to $50,000 for property damage, $100,000 for claims arising out of a single occurrence, and over $500,000 for any number of claims arising out of a single occurrence.
Reinstated by statute with 9 specific exceptions and with maximum damage awards.
Waived with monetary exceptions.
3 Years If arising out of maintenance of streets, highways, or bridges, 60 day notice of claim requirement.
If notice of claim filed, SOL is 3 years. If no notice of claim filed, SOL is 2 years with discovery rule. State liable for torts, same as private individual, with some limitations and exemptions, however. No punitive or exemplary damages or interest prior to judgment may be recovered.
Subject to statutory exceptions. State and counties, cities and townships, and school districts are not liable for damages for neglectful conduct. Officer or employee of state acting within scope of employment is immune from liability. To extent, however, of liability insurance covering state, or any other public entity, sovereign immunity deemed waived.
Abolished for governmental entities in tort cases.
Waived, but notice required within 6 months of occurrence.
U.S. VIRGIN ISLANDS
Limited. Sovereign Immunity waived with respect to injury or loss of property or personal injury or death caused by wrongful act or omission of government employee while acting within scope of his employment. $25,000 maximum recovery.
2 Years for actions against state or municipalities.
State liable for certain injuries to same extent as private individuals however, numerous monetary limits apply.
Cities and towns can be sued but require the filing of a notice of claim within 6 months of the occurrence giving rise to the action. The notice requirement is tolled for incapacities until the plaintiff is able to give notice.
Doctrine abolished but numerous statutes apply with respect to special rules
Not waived but held inapplicable to municipalities, counties, and board of education and state with liability insurance. Damages recoverable up to amount of insurance.
State retains sovereign immunity, except as provided by statute. Claims against municipalities permitted but governed by statutes with respect to types of cases and amounts of recovery.
Granted except for wrongful death, personal or property injuries, and certain cases of neglect however, numerous other restrictions apply.