quick facts

Non-Constitutional Tort Liability

Using its constitutional authority to abrogate sovereign immunity, the Florida legislature created an exclusive statutory remedy to recover damages from any “injury or loss of property, personal injury, or death” caused by the negligence of any employees of “the state or any of its agencies or subdivisions,” when that employee was acting within the scope of his or her employment. 1 That waiver covers “the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the state, including state university boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities, including the Florida Space Authority.” 2

The State, its agencies, or its subdivisions are liable under §§ 768.28 et seq. only if an employee commits tortious conduct while acting within the scope of his or her employment and without bad faith, malicious purpose, or wanton and willful disregard of human rights, safety, or property. 3 An officer may be held personally liable, however, if he or she acts outside the scope of employment or in bad faith. 4

The statute establishes a four-year statute of limitations for tort claims. 5 The statute also provides that in the absence of a “further act of the Legislature,” the State’s liability is limited to $200,000 for a claim or judgment by one person and all claims or judgments arising out the same incident or occurrence may not exceed $300,000. 6 The Florida Supreme Court has interpretated “same incident or occurrence” to mean the “injury-causing event,” not every injury that occurs during a single event. 7 State entities can nevertheless choose to settle in excess of those caps without waiving further immunity or liability when the claim is covered by insurance. 8