June 16, 2015

Does Sovereign Immunity Prevent me From Suing a Government Agency or Employee for Negligence?

Categories: Negligence, Uncategorized

It used to be that citizens in Florida were barred from suing the state or any of its agencies or subdivisions. Until the mid-1970’s, if you were injured or damaged in any way by negligent governmental action, you could not recover any amount of money from the state because of the doctrine of sovereign immunity.

In 1975, however, Florida enacted Florida Statutes section 768.28, which provides a partial waiver of Florida’s sovereign immunity. Since then, Florida citizens have been able to recover damages from the state, subject to a few very important exceptions and limitations.

Certain Actions Only

Florida, along with its subdivisions and agencies, may be sued for some negligent or wrongful acts or omissions, but generally may not be sued for bad policy decisions. For example, the state is typically immune from suit for the decision not to place a stoplight at a busy intersection but is liable for its negligent failure to maintain a stoplight at a busy intersection. Police officers are often immune from liability, as demonstrated by court cases protecting the state from liability in cases ranging from ordinance enforcement decisions to prisoner transfer to firefighting. This immunity isn’t absolute, however, and state agencies have been found liable for such actions as failing to detect child abuse or for failing to correctly follow police procedures in a traffic stop.

If you have been damaged because of the negligent decisions or actions of a state agency, your ability to recover will depend in large part upon the type of action or decision that is at the core of your injuries.

The State or the Employee

Your attorney will have to advise you as to whether you should sue the state or its employee or both. Florida Statutes section 768.28(9)(a) provides that officers, employees, and agents of the state may only be sued personally if they “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”  If that happens, or if the employee acts “outside the course and scope of her or his employment,” then the state is not liable for damages resulting from that employee’s actions.

Damage Caps

Even when a state agency or employee may be held liable for negligence, the damages that an injured person may recover are limited to a total of $200,000 per person and $300,000 per incident. If your damages exceed those amounts, you can only be paid for the excess amount after the case is referred to the legislature for further action, or if the agency has insurance with a higher coverage limit and decides to use it to settle your case. Keep in mind that even if the agency has insurance with a higher coverage limit, its use of that higher coverage is discretionary: The state does not waive its liability limits by obtaining insurance with greater coverage amounts.

Florida’s sovereign immunity law contains hotly debated gray areas and shifting Supreme Court positions. If you have been injured by the actions of the State of Florida or by one of its agencies or subdivisions, you will need to obtain the advice of an attorney who understands the current case law and has experience in tort actions against the State. At Wagner, McLaughlin & Whittemore, our experience in this area will help guide you in recovering the full amount allowed by law. Contact us today.

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