Sovereign Immunity and Florida Personal Injury Law

September 7, 2011

king.jpgSovereign Immunity derives from the medieval principle that "The King can do no wrong." Prior to 1975, its application in Florida meant that the government could not be sued for damages caused by its wrongdoing. In that year, the Florida Legislature enacted Florida Statute 768.28, which allowed actions against the state or any of its agencies or subdivisions (e.g., cities, municipalities, counties). However, the statute capped the amount that could be recovered, regardless of the actual damages in a case, and it allowed to stand absolute immunity for planning level decisions.

From the statute's original enactment until July 1, 2011, a period of 36 years, the damage caps stood at $100,000 per individual, $200,000 total per claim. For example, if 4 people were catastrophically injured by the negligence of a government employee, the most any one individual could recover was $100,000, leaving the other 3 to share the remaining $100,000. (The $200,000 could also be split equally among the four or any other way, so long as any one victime did not receive more than $100,000.)

In 2009, the Florida Legislature passed a bill upping the damage caps to $200,000/$300,000 effective July 1, 2011. The increase, although far from adequate in many cases, was a long time coming and a positive step.

The statute has left untouched absolute sovereign immunity for the discretionary, judgmental, planning-level decisions of a governmental entity. Examples include decisions concerning the initial plan, road alignment, traffic control device installation, the improvement of roads and intersections, and defects in the construction of a road, median, and intersection.

However, once the sovereign becomes aware of a hazard so serious and so inconspicuous to a foreseeable plaintiff that it virtually constitutes a trap, the planning level absolute sovereign immunity is waived, bringing into play the damage caps discussed above.

Countless wars have been fought over whether planning level immunity applies or has been waived.

My law firm was recently involved in such a war with two governmental entities. We represented the surviving husband and three minor children of a young woman who drowned when a car driven by her cousin plunged into a canal at a dangerous curve in the road on a dark, rainy night. We determined that prior to our accident, other cars had been driven into the canal at the same location under similar conditions ,resulting in the death of one individual and the near death of others. In addition, a mere two months after our accident, a 19 year old woman died under similar circumstances at the same curve.

To get around absolute sovereign immunity, we argued that the government entities knew or should have known about the death trap and corrected it before our accident. In fact, the fix was eventually made by one of the entities by having a work crew extend the guardrail by some twenty feet at a cost of less than $1,500. Sadly, this was not done until after innocent lives were lost.

Which brings me to the biggest problem with sovereign immunity, both the absolute and the limited types: Lack of financial exposure to motivate accountability.

Because of sovereign immunity, government entities have little reason, beyond moral imperatives, to act properly. Sovereign immunity protects the sovereign from being struck by large, attention-getting damage claims. Whereas the private individual or corporation who has no such protection is thus motivated by self-preservation, if not moral decency, to avoid being subjected to devastating damage awards, the sovereign has no such concern. When a slap on the wrist is the worst punishment for doing wrong, indifference will be the prevailing attitude.

Quite shameful, really.

Our law firm believes strongly that the doctrine of sovereign immunity should be discarded as an antiquated relic of the past. I have yet to hear a good reason why government entities should not be held to the same standards as private individuals and corporations for negligent acts resulting in life-altering consequences.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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