In Florida, governmental entities enjoy the protection of “sovereign immunity” and generally cannot be sued for planning level type decisions.  A classic example of this is the decision of whether to erect a traffic light.  If a governmental entity decides not to erect a traffic light and a collision occurs, the government generally cannot be sued for its decision.  Governmental entities can be sued, though, for operational type activities.  The classic example here is negligently failing to replace a bulb in a traffic light – after having made the planning level decision to erect one – resulting in a collision.  Perhaps the most common governmental exposure for negligence arises from the operation of motor vehicles.  Governmental drivers are subject to the same negligence laws that apply to all drivers in Florida.

Suing a Florida governmental entity for negligence involves different procedural rules.  For example, within 3 years of the accident the claim must be presented in writing to the agency and, in most cases, the Department of Financial Services.  The entity then has 6 months to consider the claim.  A lawsuit cannot be filed until the claim is denied or this 6 month period runs (i.e., in the absence of an express denial).  The claimant is entitled to seek a jury trial when a lawsuit is filed.

Once a lawsuit is filed, certain procedural rules are different for claims involving governmental liability.  The most significant difference, though, concerns the amount of damages that can be obtained from a governmental entity that is sued for negligence.  Section 768.28, Florida Statutes, currently limits governmental exposure in negligence actions to a maximum of $100,000 per person and $200,000 per incident, regardless of the number of people injured.  Any amounts in excess of those limitations can only be obtained through a “claims bill,” which is a special law passed by the Legislature authorizing payment in excess of the sovereign immunity limits.  Claims bills are uncommon.  Thankfully, effective in October 2011, the limitations of Section 768.28(5) are being increased to $200,000 per person and $300,000 per incident.  This is the first increase in approximately 30 years. 

Suing the federal government for negligence involves making a claim under the Federal Tort Claims Act.  Although there is no specific dollar limitation like there is under Florida law, there is a similar pre-suit claim process.  The amount sought in the pre-suit filing represents the maximum amount that can ever be recovered.  All lawsuits brought under the Federal Tort Claims Act are heard in federal court, without a jury.

As this short blog demonstrates, claims against governmental entities are more complex than claims against private defendants.  Lesser, Lesser, Landy & Smith, PLLC, is always happy to answer questions regarding a potential claim.

Reality, of course, is much different from television drama.  Many civil disputes are resolved before a lawsuit is even filed.  Of those that are filed, well over 9 out of 10 are settled without the client ever setting foot in the courthouse.  Florida has a very strong pre-trial mediation program.  This program is mandatory, and no case can go to trial in Florida without first going through the mediation process.  Trained mediators help the parties try to reach a compromise they can live with.  We have had great success in resolving cases through pre-trial mediation.

Of course, not every case settles before trial.  We have found that, after getting over the initial butterflies, our clients almost universally agree that the process is not as bad as they expected.  Palm Beach County is blessed with the finest judiciary in the State of Florida.  Our Judges do not allow the sort of behavior seen on television dramas, and the experience is simply not as nerve-wracking as TV would suggest.

Our lawyers have a vast amount of trial experience. Insurance companies and defense lawyers know this.

Our abilities in the courtroom allow us to resolve most of our cases before trial.  While it might be natural to have feelings against “going to court,” that should never be a reason for not pursuing a valid claim.