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Governmental Immunity: When Can You Sue The King?

By Brent C. Miller, Esquire

Thousands of lawsuits are filed each year against various individuals, corporations and a variety of other entities. These claims range from breach of contract to claims asserting negligent conduct.

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Generally, governmental entities are immune from liability for most government activities. However, if one wishes to file suit against a governmental entity (i.e., city, county or the state of Florida), the Florida legislature must have passed a law allowing the type of lawsuit you wish to file. In other words, the legislature must have "waived" government immunity for your type of case.

Common law duty of care

Florida Statues Section 768.28 waived governmental immunity for most government activities where there had been an underlying common law duty of care. The waiver was intended to be broad in its coverage, but was not intended to create causes of action for activities that are inherently governmental in nature. The abiding test for determining whether a government entity has sovereign immunity for its tortious acts is the operational/planning formula set forth within Florida's case law. For instance, decisions relating to "certain policy-making, planning or judgmental governmental functions" are not subject to the legislature's waiver of sovereign immunity. Conversely, government entities are not immune from liability for their torts arising from operational functions. In such cases where immunity does not apply, traditional tort principles govern.

In order to clarify the law regarding governmental tort liability, the Supreme Court has stated the following:

  • First, for there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct.
  • Second, governmental entities "shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances." This effectively means that the identical existing duties for private persons apply to governmental entities.
  • Third, certain discretionary functions of government are inherent in the act of governing and are immune from suit. It is "the nature of the conduct, rather than the status of the actor, that determines whether the function is the type of discretionary function which is, by its nature, immune from tort liability."

In addition to these basic principles, the Supreme Court recognized that there were areas of governmental activity where "orthodox tort liability stops and the act of governing begins." To better clarify the concept of governmental tort liability, the Supreme Court established a test to place governmental functions and activities into the following four categories:

  1. Legislative, permitting, licensing and executive officer functions
  2. Enforcement of laws and the protection of the public safety
  3. Capital improvements and property control operations
  4. Providing professional, educational and general services for the health and welfare of the citizens

Simply put, the decision not to erect a stop sign at an intersection is a "planning-level" act and is protected by immunity. So too is the decision to construct a road or place a guardrail. The decision itself is protected from liability as such decision is part of the government's plan. However, if the road or guardrail is constructed or placed negligently (faulty asphalt or negligently constructed guardrail), the governmental entity will be liable for any damages due to such negligence.

If you or a family member has been injured due to an act or omission on the part of your local or state government, contact our firm for a free consultation.

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