Fla. Stat. § 768.28

Section 768.28(9)(a) treats a suit against an official in an official capacity as a suit against the employing governmental entity.

Stephens v. Geoghegan · filed 1997-10-17(9)(a)

We also dismiss the portion of the petition challenging the denial of the defendants' motion in their official capacities and in conjunction with the City of St. Petersburg. A suit against a defendant in his official capacity is, in actuality, a suit against the governmental entity which employs him. See § 768.28(9)(a), Fla. Stat. (1991); Dept. of Education v. Roe, 679 So.2d 756, 759 (public officials who defend tort suits against the state are not sued in their personal capacities); cf. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 361, 116 L.Ed.2d 301 (1991) (under 42 U.S.C. § 1983, official-capacity suits are merely another way of pleading an action against the entity of which the officer is an agent).

Section 768.28(9)(a) requires an injured plaintiff to sue the governmental employer instead of the state employee, but does not bar a claim against a private entity responsible for the employee’s conduct.

Andrew v. Shands at Lake Shore, Inc. · filed 2007-12-20(9)(a)

The phrase "exclusive remedy" is used in section 768.28(9)(a) to clarify the point of the statute: that an injured plaintiff may not sue a public employee but must instead sue the agency responsible for the employee's conduct. It is not used in a more expansive way to foreclose the potential liability of third parties who would not, in any event, derive immunity from the state.

Section 768.28(5)'s limits on governmental tort liability are constitutional.

Jetton v. Jacksonville Elec. Auth. · filed 1981-05-29(5)

Since Section 768.28 neither abolished any common law rights to redress nor irrationally impinged other constitutional guarantees, we find its limits on tort liability constitutional.

Section 768.28(5)'s municipal liability cap does not limit damages for a maritime tort governed by federal admiralty law when the city lacks Eleventh Amendment immunity.

Pelican Marine Carriers, Inc. v. City of Tampa · filed 1992-04-14(5)

In the absence of Eleventh Amendment immunity, the City cannot limit its liability in federal court pursuant to Section 768.28 for a suit brought under federal admiralty law for a maritime tort committed in the navigable waters of the United States. Therefore, the City of Tampa is liable for all damages awarded against it.

Section 768.28(5) permits entry of a judgment above the statutory liability cap, with payment of the excess requiring legislative action.

Overseas Private Investment Corp. v. Metropolitan Dade County · filed 1993-05-27(5)

The Court finds that the plain language of the statute authorizes entry of a judgment in excess of the cap and that Plaintiffs may seek a legislative claims bill to recover the excess.

Section 768.28(5) requires recovery against a municipality above the statutory caps to come through legislative appropriation rather than enforcement of a judgment.

Comer v. City of Palm Bay · filed 2001-06-21(5)

The relevant Florida law is Fla. Stat. § 768.28(5), which requires that recovery against a municipality in excess of the specified caps must be through legislative appropriation rather than judicial enforcement of a judgment.

Section 768.28(5) permits recovery of up to $200,000 from a city when two separate incidents each support a claim subject to the $100,000 limit.

Edman v. Marano · filed 2006-04-19(5)

Because these are two separate incidents (false arrest and the subsequent notary law violations), the maximum amount that Edman can collect from the City is $200,000, not $100,000.

Section 768.28(5) applies its $100,000 per-person limit to the entire judgment across multiple claims, but cannot limit an independently authorized federal award.

Bradshaw v. School Board of Broward Co. · filed 2007-05-15(5)

Section 768.28(5), by contrast, limits the size of “a claim or a judgment by any one person.” One might read “claim” to indicate a claim under a particular statute, a cause of action, but Fla. Stat. § 768.28(5) limits the size of a claim or judgment, and a judgment can be based on multiple causes of action. Consequently, courts have read it to limit the entire judgment that an individual plaintiff can recover in a single case, regardless of the number of causes of action upon which the judgment is predicated.

Section 768.28(5) does not waive sovereign immunity above its statutory caps when a governmental entity buys excess liability insurance; recovery above the caps requires a claims bill.

Joynt v. Star Ins. Co. · filed 2018-06-01(5)

The statute only waives sovereign immunity up to $200,000. Any further waiver of sovereign immunity must be approved by the legislature through a claims bill-whether or not the state carries excess liability insurance.

Section 768.28(5)(a) excludes punitive damages from a municipality’s liability for tort claims.

D. L. v. Hernando County Sheriff's Office · filed 2022-08-09(5)(a)

Instead, Florida law provides that while a municipality may be liable for tort claims in the same manner as a private individual, “liability shall not include punitive damages.” Fla. Stat. § 768.28(5)(a).

Section 768.28(5) limits the State's payment obligations, while subsection (9) does not immunize state employees from tort liability and cannot retroactively eliminate a vested right to sue.

State, Dept. of Transp. v. Knowles · filed 1980-07-11(5), (9)

DOT contends that Section 768.28(5) restricts the total judgment which the court could enter against DOT to $50,000. We disagree. In State v. Yant, 360 So.2d 99 (Fla. 1st DCA 1978), our sister court held that the $50,000 limitation of Section 768.28(5) does not apply to separate claims by different individuals in the same lawsuit. We agree. Likewise, we reject, as did the court in Yant, DOT's contention that the court could not assess costs above the limitation of Section 768.28(5). Id. at 101 (on petition for rehearing). ... Thus, the trial court erred in refusing to enter judgment against Gregg for $70,000. ... Application of the *1048 amendment would eliminate the Knowles' cause of action against Gregg. To the extent that Chapter 80-271 retroactively eliminates the Knowles' vested right to sue Gregg, it is unconstitutional.[1]McCord v. Smith, 43 So.2d 704 (Fla. 1949).

Section 768.28(5) bars punitive damages and pre-judgment interest and permits post-judgment interest and costs only within the $50,000 total recovery limit.

Berek v. Metropolitan Dade Cty. · filed 1981-03-24(5)

Accordingly, we construe the statute to declare that recovery of punitive damages or pre-judgment interest is always precluded, that is, even where the total recovery is less than $50,000; and that post-judgment interest and costs are recoverable, but only to the extent that the total of the judgment for damages and the post-judgment interest and costs does not exceed $50,000.

Section 768.28(5)’s $50,000 limit on municipal liability does not apply to costs or postjudgment interest.

City of Lake Worth v. Nicolas · filed 1982-07-14(5)

Therefore we hold that the limitation of municipal liability as provided in Section 768.28(5), Florida Statutes (1975) does not apply to costs and post judgment interest.

Section 768.28(5)’s $50,000-per-person and $100,000-per-incident caps constitutionally limit tort recovery against municipalities, including for functions previously subject to liability.

Cauley v. City of Jacksonville · filed 1981-07-16(5)

For the reasons expressed, we affirm the trial court and uphold the constitutional validity of section 768.28(5), Florida Statutes (1977).

Section 768.28(5) limits a municipality's liability to $50,000 for one person's tort claim, even if a local ordinance promises full indemnification.

Donisi v. Trout · filed 1981-09-09(5)

Since the municipal ordinance indemnifying Donisi is a local and not general law, it cannot be employed to completely waive sovereign immunity. The limitations of liability set forth in the subsection apply to the municipality; therefore, the liability of the City is limited to $50,000.

Under the 1979 version of § 768.28(5), costs and post-judgment interest are recoverable in tort claims against the state, but the state's total liability to one claimant for one incident, including damages, costs, and interest, is capped at $50,000.

Berek v. Metropolitan Dade County · filed 1982-11-24(5)

The maximum amount of the state's liability to any one claimant arising out of any one incident or occurrence, therefore, is $50,000, including damages, costs, and post-judgment interest.[3] If the damages alone are less than $50,000, then costs and post-judgment interest are recoverable, but only up to the maximum liability of $50,000.

Section 768.28(5)'s per-incident liability limit applies when individually injured people bring their claims as a class action.

TRIANON PARK CONDOMINIUM ASSOC., INC. v. City of Hialeah · filed 1983-01-11(5)

Although this precise issue appears to be one of first impression in this state, we agree with the Association that the "per incident" level of recovery rather than the "per person" level should apply. As the Association points out, each unit owner was individually damaged by the City's negligence and could have maintained an independent action against the City, in which case the City would have been liable up to the "per incident" level of judgment for the total aggregate of the claims.

Section 768.28(8)'s 25 percent attorney's fee limit applies to the entire settlement, including recovery funded by supplemental liability insurance.

Dade County School Bd. v. Ingraham · filed 1983-02-08(8)

Since Section 768.28(8) is the only portion of the unitary concept which deals with attorney's fees, we find that its provisions govern the situation where a state agency decides to purchase supplemental and discretionary insurance.

Section 768.28(8) limits attorney's fees to 25 percent of the entire judgment or settlement when sovereign immunity is waived, including amounts paid through supplemental insurance.

INGRAHAM EX REL. INGRAHAM v. Dade County School Bd. · filed 1984-05-17(8)

The 25 percent limitation on attorney's fees relates to any judgment or settlement and therefore applies to all situations involving waiver of sovereign immunity regardless of the source of payment.

Section 768.28(5) permits a judgment above the statutory liability limit, but payment up to that limit requires satisfaction of the judgment; recovery of the excess depends on legislative action.

City of Lake Worth v. Nicolas · filed 1983-07-07(5)

Pursuant to this provision and our Berek decision the trial court may render judgment for the full amount of the damages, $68,750, plus costs, but upon payment of $50,000 by or on behalf of the City of Lake Worth the respondent shall be required to give a satisfaction of judgment, his recourse for the excess being only to the legislature.

Section 768.28(5) limits aggregate recovery for a single incident to $100,000, even when multiple governmental entities are liable.

Gerard v. Department of Transportation · filed 1984-08-15(5)

This language imposes a cumulative per-incident limitation on aggregate recovery regardless of whether the source of payment is a single governmental entity or multiple governmental entities.

Section 768.28(5) permits recovery of the portion of a tort judgment above the statutory cap only through a further act of the legislature, including when the defendant is Dade County.

Hess by & Through Hess v. Metro. Dade County · filed 1985-04-04(5)

The legislature's enactment of chapter 83-393 as a "further act" authorized by section 768.28, pursuant to the authority granted it by article X, section 13, does not contravene these provisions of Dade County's Home Rule Amendment. It is merely an implementation of the general law authorizing waiver of sovereign immunity and creating an exclusive method for obtaining damages which exceed the statutory cap set out in section 768.28(5).

Section 768.28(5) limits a hospital district’s payment on a tort judgment to the applicable statutory maximum and allows it to report the excess to the Legislature.

North Broward Hosp. Dist. v. Eldred · filed 1985-04-10(5)

While we affirm the amount of the judgment, we remand with direction that upon payment by appellant to appellee's parents and next friends of the statutory maximum of $50,000 provided at the time of the 1977 incident by section 768.28(5), Florida Statutes (1975), said parents and next friends shall be required to execute and deliver a satisfaction of judgment to appellant in accordance with City of Lake Worth v. Nicolas, 434 So.2d 315 (Fla. 1983). Upon such satisfaction, appellant may, pursuant to section 768.28(5), report to the Florida Legislature that portion of the judgment which exceeds $50,000.

Section 768.28(5) permits a claimant to seek a judgment above the statutory liability limit even after that limit has been paid, as a step toward seeking a legislative claims bill.

Gerard v. Dept. of Transp. · filed 1985-07-11(5)

This statutory provision evidences no legislative intent to deprive the trial court of subject matter jurisdiction upon payment of the statutory cap authorized by section 768.28(5). The act does not preclude a claimant from seeking a judgment for an excess sum as a preliminary step to seeking a claims bill.

Section 768.28(5) treats arrests on separate occasions as separate incidents for the liability cap, even when both arrests arise from enforcement of the same ordinance.

Pierce v. Town of Hastings · filed 1987-06-04(5)

The finding by the trial court that there was only one incident because both arrests arose out of enforcement of the same ordinance is patently incorrect as a matter of law. The facts are undisputed that Pierce was arrested on two separate occasions, thus constituting two "incidents" or "occurrences." The fact that both arrests were based on the same ordinance is immaterial.

Section 768.28 limited the hospital district's total payment to $50,000, including damages, attorney's fees, costs, and post-judgment interest, and capped attorney's fees at twenty-five percent of a judgment or settlement.

DeAlmeida v. Graham · filed 1987-07-08(8)

Section 768.28 limits North Broward Hospital District's liability for payment to $50,000 of the final judgment. The statute provides that no attorney may charge, demand, receive, or collect for services rendered a fee in excess of twenty-five percent of any judgment or settlement. ... Therefore we affirm the final judgment against the North Broward Hospital District, subject to reduction for the amount of future damages and collateral source payments, if any, but limit the District's liability for payment to $50,000 including all elements of damages, attorney's fees, costs and post-judgment interest.

Section 768.28(14)’s $100,000 liability cap applies only to causes of action accruing on or after October 1, 1981; a claim accrues when the injury occurs.

State, Department of Highway Safety & Motor Vehicles v. Kropff · filed 1987-10-27(14)

The issue in this appeal involves the proper construction of section 768.28(14), Florida Statutes (1981). ... We reverse the trial court’s ruling upon a holding that Kropff’s cause of action accrued when she was injured in 1978.

Section 768.28(5) limits damages recoverable from a covered hospital district to $100,000.

Brown v. North Broward Hosp. Dist. · filed 1988-01-20(5)

The supreme court's decision in Eldred is dispositive of this issue and, therefore, we affirm the trial court's decision limiting the damages to a total of $100,000 pursuant to section 768.28(5), Florida Statutes (1979).

A sheriff waives a challenge to the liability cap in § 768.28(5) after the judgment is affirmed and the sheriff voluntarily dismisses an appeal from a writ ordering payment.

Navarro v. Bouffard · filed 1988-03-23(5)

Regarding the non-final appeal of the orders of July 7 and 15, 1987 (the 12% sanction and cap), it is apparent from the record of these proceedings that the sheriff has waived any further consideration of the propriety of the statutory cap. When the judgment was originally entered against the sheriff for $250,000, an appeal to this court was taken and the judgment was affirmed in September, 1986. Thereafter, Bouffard, et al., filed a petition for writ of mandamus to require the sheriff to pay the judgment. From a peremptory writ of mandamus ordering him to pay the judgment, the sheriff appealed, but subsequently voluntarily dismissed the appeal in June, 1987. That concluded the right to attack the amount of the judgment vis-a-vis the statutory cap.

Section 768.28(5) requires payments already made on a claim to be credited against the amount for which the governmental entity may be held responsible, rather than against the total jury award.

Pensacola Jr. College v. Montgomery · filed 1989-02-28(5)

As PJC aptly observes, the trial court's ruling would increase its waiver of immunity in direct contravention of the provisions of section 768.28(5), Florida Statutes. ... Accordingly, on remand, following the determination of PJC's excess waiver of its sovereign immunity, if any, under section 768.28, the trial court shall apply the $28,490.69 against that amount and not against the total jury award.

Section 768.28’s $100,000 damages cap does not itself limit the Division of Risk Management’s liability for a back-pay and interest award treated as a general liability under § 284.30.

Florida Department of Insurance, Division of Risk Management v. Tuveson · filed 1989-03-28

We note that the Division asserts on appeal that its policy limit of. $100,000 precludes it from any liability in excess of that amount. We disagree with this assertion to the extent that the Division relies on the § 768.28, Fla.Stat. $100,000 cap on damages as its basis.

Section 768.28(5)'s damages cap cannot be multiplied by suing multiple sovereign defendants; a settlement reaching the cap exhausts recovery.

Vasquez v. Board of Regents, State of Fla. · filed 1989-07-12(5)

Finally, Vasquez challenges the trial court's finding that the $100,000 settlement payment from the Hospital Authority exhausted the waiver of immunity limits provided in section 768.28(5). We affirm that point. In Gerard v. Department of Transportation, 472 So.2d 1170 (Fla. 1985), the Florida Supreme Court flatly rejected the notion that a plaintiff can "stack" sovereigns and exceed the statutory limits.

Section 768.28(5) permits separate claims by different individuals arising from one incident, subject to a $100,000 per-person limit and a $200,000 combined limit.

State, Department of Corrections v. Parker · filed 1989-11-29(5)

Both the wife and the estate were separately injured by the death of the husband. The wife’s action for loss of consortium was distinct from that of the estate and under the statute each could be awarded up to $100,000 or a combined amount of $200,-000.

Section 768.28(5) limits recovery against the state to $200,000, and post-judgment interest cannot be added to exceed that limit.

Department of Corrections, State v. Parker · filed 1990-10-31(5)

The issue here is whether the amount of post-judgment interest imposed against a sovereign can be added to the statutory recovery limit set forth in section 768.28(5), Florida Statutes (1989), so that the total recovery applicable in this case exceeds $200,000. The trial judge said it could. We disagree and, without further discussion, reverse this cause on the authority of Berek v. Metropolitan Dade County, 422 So.2d 838 (Fla.1982).

Section 768.28(5) does not permit prejudgment interest awards in tort claims against a subdivision of the state.

Tunnell v. Hicks · filed 1991-02-06(5)

We reverse, however, the award of prejudgment interest, for the reason that section 768.28(5) does not permit such awards in tort claims against a subdivision of the state.

Section 768.28(5) allows a plaintiff to obtain a judgment for full damages against a governmental entity, even when recovery from the entity is capped, and pursue the excess through a claims bill.

South Broward Topeekeegeeyugnee Park Dist. v. Martin · filed 1990-08-15(5)

These cases make it clear that the mere fact the legislative act places a cap upon the amount of damages recoverable against the governmental entity does not affect the plaintiff's right to a judgment for his full damages. The plaintiff is entitled to recover against the entity the amount of the cap and then report the balance to the legislature by way of a claims bill and recover so much of the balance as the legislature may see fit to award.

The statute waives sovereign immunity for tort claims but excludes interest accruing before judgment.

STATE, DEPT. OF TRANSP. v. Bailey · filed 1992-08-28(5)

Because an award of prejudgment interest does not fall within the parameters of the waiver of sovereign immunity expressed in Section 768.28, Florida Statutes, the trial court was without jurisdiction to enter such an award.

Section 768.28 allows judgments beyond the amount the state must pay under sovereign immunity limits and permits those limits to be exceeded when insurance coverage is available.

Michigan Millers Mut. Ins. Co. v. Bourke · filed 1992-11-05(5)

In conclusion, section 768.28 authorizes the rendition of a judgment in excess of the amount the State can be required to pay due to sovereign immunity. Furthermore, the legislature has determined that, in addition to allowing discretionary recovery through a legislative claims bill, the limits of the sovereign immunity statute may be exceeded when insurance coverage is available. We find that the immunity defense available under section 768.28 is not absolute within the meaning of the term "legally entitled to recover" so as to allow such a defense to be raised substantively by an insurance carrier.

Section 768.28 does not require a claimant seeking no additional recovery from the government to secure a claims bill before pursuing a third party.

Martin v. National Union Fire Insurance Co. of Pittsburgh · filed 1993-04-14(5)

We also conclude the Martins need not secure a claims bill before proceeding against the agents. By the claims bill procedure, the legislature may, in its discretion, mandate a governmental entity to pay an injured party an additional amount of compensation. That is not the situation here, where the Martins seek no additional recovery from the government.

Section 768.28(5) bars awards of prejudgment interest against the Department of Transportation.

State, Department of Transportation v. Madison Country Club, Inc. · filed 1993-05-17(5)

To the extent that the judgment entered includes awards of prejudgment interest against the Department of Transportation, such awards of prejudgment interest must be reversed. § 768.28(5), Fla.Stat.; State Department of Transportation v. Bailey, 603 So.2d 1384 (Fla. 1st DCA 1992) (on motion for rehearing).

Section 768.28(8) limits attorney’s fees in a tort claim against the government to 25% of the judgment, even when fees are available under the offer-of-judgment statute.

Hellmann v. City of Orlando · filed 1994-03-25(8)

But the court did not give a full award of attorney’s fees, it limited the amount to 25% of the judgment because the sovereign immunity waiver statute says that is the limit. § 768.28(8), Fla.Stat. Because the government controls absolutely how much it will pay in tort claim cases, we are bound by the statute limiting the award of attorney’s fees.

Section 768.28 caps recovery against a state agency at $100,000 per person; recovery above the cap requires a discretionary claims relief act from the Legislature.

Fernandes v. Barrs · filed 1994-08-30

Under the unusual facts of this case, the only way that the Barrs could collect the full amount of the judgment they would have obtained against Lake City Community College would be to go through the process of seeking a claims relief act in the Florida Legislature. This claims relief procedure, however, is completely discretionary with the Legislature.

Section 768.28(5) limits judicial enforcement of tort judgments against state agencies to $200,000 for all claims arising from one incident, while allowing a claimant to seek additional payment through a legislative claims bill.

Rice v. Brown · filed 1994-10-12(5)

Tort judgments against state agencies may not be judicially enforced in an amount exceeding $200,000 for all claims arising out of one incident. § 768.28(5), Fla. Stat. (1983).[3] In spite of section 768.28's imposition of a cap limiting tort recovery, a plaintiff may petition the legislature in an effort to secure compensatory relief in excess of the statutory limit.

Section 768.28(5) limits a political subdivision’s payable liability and requires legislative authorization before a judgment exceeding the cap can be collected.

DADE CO. SCH. BD. v. Radio Station WQBA · filed 1997-05-07(5)

DCSB is a political subdivision of the State of Florida, and thus its liability is limited by the statutory cap. Section 768.28(5) authorizes the rendition of a judgment in excess of the maximum liability where that portion exceeding the cap is reported to the Legislature and "only by further act of the Legislature." See § 768.28(5), Fla.Stat. (1995). No such authorization was obtained, and thus we must remand with instructions to the trial court to strike the language "for which sum let execution issue" in the final judgment.

Section 768.28(5) limits recovery against a governmental entity absent a claims bill, but permits a claimant to obtain a judgment for the full amount of damages.

Paushter v. South Broward Hospital District · filed 1995-11-15(5)

However, while section 768.28(5) limits recovery against a governmental entity absent a claims bill, it does not limit the right of a party to proceed to judgment for the full amount of damages against the state or its agencies.

Section 768.28 does not require an automatic reduction of a judgment against a county to $100,000.

Metropolitan Dade County v. Frederic · filed 1997-07-09

As a threshold consideration, the County is not entitled to an automatic reduction of the awards to $100,000. See § 768.28, Fla.Stat. (1989) (judgment may be claimed and rendered in excess of statutory limits); Berek v. Metropolitan Dade County, 422 So.2d 838 (Fla. 1982); South Broward Topeekeegeeyugnee Park Dist. v. Martin, 564 So.2d 1265 (Fla. 4th DCA 1990), review denied, 576 So.2d 291 (Fla.1991).

Section 768.28(8) limits attorney’s fees awarded against a sovereign in a tort case to 25% of the judgment, even when section 768.79 would authorize a larger award.

City of Live Oak v. Harris · filed 1997-12-08(8)

The City contends that, pursuant to subsection (8) of section 768.28, Florida Statutes (1995) governing the waiver of sovereign immunity, fees may not be awarded in excess of 25% of the judgment amount, or a total of $8,145.09. We agree and reverse. ... Therefore section 768.28(8) controls over section 768.79.

Section 768.28(5) permits a governmental entity to settle a tort claim within its liability insurance limits, even when the demand exceeds the statutory liability cap.

Tramel v. Bass · filed 1998-03-03(5)

This section expressly permits governmental entities to settle claims up to the limit of liability insurance they may carry. In this case, Bass’ demand did not exceed the limit of Tramel’s liability insurance. As section 768.28(5) expressly authorized Tramel to accept Bass’ demand, the demand was not in bad faith, and Bass was entitled to attorney fees.

Section 768.28(5) limits collection to $100,000 for a single incident or occurrence, even when the claimant prevails on two theories of recovery.

School Bd. of Broward County v. Greene · filed 1999-08-25(5)

Thus, the damage award rendered by the jury was based upon the release of the information to the public, a single incident or occurrence. As such, because there was only one incident or occurrence, Greene is limited to $100,000 notwithstanding that Greene prevailed on two separate theories of recovery.

Section 768.28’s liability limits do not apply to damages assessed against a governmental entity for a wrongfully issued temporary injunction because those damages do not arise from a tort suit.

Provident Mgmt. Corp. v. TREASURE ISLAND · filed 2001-05-24(5)

Further, we conclude that the limitations of section 768.28 do not apply because that statute applies only when the governmental entity is being sued in tort.

Section 768.28(5) bars interest on costs for any period before the cost judgment, even when the underlying tort judgment was entered earlier.

State v. Dieterle · filed 2001-06-13(5)

While Florida has waived sovereign immunity, the State has not waived immunity for prejudgment interest. ... The established legislative policy is that prejudgment interest will not be awarded. It was impermissible to enter a cost judgment which included interest running from an earlier date.

Section 768.28(8)’s 25 percent attorney’s fee cap is calculated using a judgment that includes court-awarded attorney’s fees and taxable costs, as well as damages.

City of Jacksonville v. Brooks · filed 2002-07-16(8)

Similarly, a “judgment” under section 768.28(8) is not limited to the amount of damages awarded in the jury verdict, but also includes any attorney’s fees and taxable costs granted by the court.

Section 768.28(5) applies a single $100,000 cap to one person's claim against a state agency, even when the claim involves multiple negligent acts over several years.

STATE DHRS v. TR Ex Rel. Shapiro · filed 2002-08-14(5)

However, the fact that the behavior at issue spanned a number of years and included a number of different actions by a number of state employees does not change the fact that the claims in full amounted to no more than each girl's single claim against the Department for the injuries she suffered while under its supervision. Therefore, the single statutory cap of $100,000 per girl must apply.

Section 768.28(5) applies one $100,000 cap to a person’s single claim against a state agency, even when the alleged negligence spans multiple acts and years.

State Department of Health & Rehabilitative Services v. T.R. ex rel. Shapiro · filed 2002-08-14(5)

However, the fact that the behavior at issue spanned a number of years and included a number of different actions by a number of state employees does not change the fact that the claims in full amounted to no more than each girl’s single claim against the Department for the injuries she suffered while under its supervision. Therefore, the single statutory cap of $100,000 per girl must apply.

Amounts obtained through a legislative claims bill do not count against section 768.28(5)'s limits on recovery in an action at law.

City of Miami v. Valdez · filed 2003-04-23(5)

In sum, the amounts procured through means of a legislative claims bill have no application to the limited amounts that may be directly procured in an action at law in accordance with section 768.28, a provision that must be strictly construed.

Section 768.28(5) caps recovery from a governmental entity at $100,000 per person and $200,000 per accident unless the Legislature passes a special claims bill, even when the judgment is larger.

Breaux v. City of Miami Beach · filed 2005-03-24(5)

The Legislature has set a cap on damages recoverable from a governmental entity at $100,000 per person and $200,000 per accident. See § 768.28(5), Fla. Stat. (2004). So, although a judgment may be obtained for a larger amount, the statutory caps make it impossible, absent a special claims bill passed by the Legislature, for a claimant to collect more than the caps provide.

Section 768.28(5)'s liability cap encompasses all components of a monetary judgment and applies to the total recovery when incorporated into a civil rights claim.

Gallagher v. Manatee County · filed 2006-02-01(5)

There is no basis for concluding that the well-established scope of the limitation of liability under section 768.28(5)—encompassing all components of a monetary judgment—should not also obtain under section 760.11(5).

Section 768.28(5) applies a separate $100,000 recovery limit to each claim arising from a separate incident, with attorneys' fees included in each limit.

Zamora v. ATLANTIC UNIV. BD. OF TRUSTEES · filed 2007-11-07(5)

Because the two claims brought by Zamora and for which he recovered separate damage awards arose from separate incidents, the statutory cap applies to each claim. We therefore reverse for the court to apply a separate statutory cap to each claim, and limiting the total recovery, including attorneys' fees, for each claim to $100,000.

Section 768.28(5) limits total recovery in a suit to $200,000, including attorney's fees.

Noel v. SHELDON J. SCHLESINGER, PA · filed 2008-06-25(5)

Section 768.28(5) limits total recovery in a suit to $200,000. This limit includes attorney's fees.

Section 768.28(8)'s 25 percent attorney's fee limit does not apply to claims under the Florida Civil Rights Act.

BD. OF TRUSTEES OF STATE UNIV. v. Esposito · filed 2008-08-15(8)

Thus, we conclude that section 768.28(8) does not apply to the FCRA.

Section 768.28(5) permits a court to enter a judgment against a government defendant even after another government defendant has paid the statutory maximum.

State Department of Environmental Protection v. Garcia · filed 2011-08-03(5)

First, even though the Garcias have already been paid the statutory maximum by the City, the trial court still has jurisdiction to enter a judgment in their favor against the Department. See Gerard v. Dep’t of Transp., 472 So.2d 1170 (Fla.1985) (where city paid the maximum amount permitted by section 768.28(5) trial court retained jurisdiction to enter judgment for an excess sum against Department of Transportation).

Section 768.28(5) bars punitive damages against municipalities.

City of Orlando v. Pineiro · filed 2011-08-05(5)

The City, as a municipality, is not subject to punitive damages.

Section 768.28(5)’s payment cap does not prevent a court from entering a judgment to support a potential legislative claims bill, even when the statutory maximum has been paid.

Public Health Trust of Miami-Dade County v. Rolle · filed 2011-09-28(5)

Moreover, as we recently have explained, even if the Rolles have been paid the statutory maximum permitted under the statute, the trial court still has jurisdiction to enter a judgment against the Trust for purposes of supporting a potential claims bill to the legislature.

Section 768.28(5) limits a city's required payment to $100,000 per claim by any one person.

City of Miami v. Guzman · filed 2013-01-23(5)

Pursuant to section 768.28(5), Florida Statutes (2010), the maximum damages that the City of Miami is required to pay per claim by any one person is $100,000.00.

Section 768.28(8) caps attorney fees at 25% but does not require fees of at least 25%.

Searcy Denney Scarola Barnhart & Shipley, P.A. v. State · filed 2015-07-15(8)

The statute places a cap on the recoverable attorneys’ fees, not a floor. Twenty five percent is not, by its very terms in this statute, a mandatory minimum.

Section 768.28(5)’s liability limit applies to tort judgments, not judgments for breach of an express written contract.

Department of Transportation v. CSX Transportation, Inc. · filed 2013-12-11(5)

Concerning the argument that this judgment must be limited to the state’s liability under section 768.28(5), we conclude that DOT’s liability in 2002 to CSX was based on an express written contract. ... The statutes limiting liability in cases of the legislature’s partial waiver of sovereign immunity apply only to judgments recovering damages for tort, not to judgments recovering damages under legal theories that may be analogous to torts.

Section 768.28(8) caps attorneys’ fees at 25 percent but does not require fees to reach that amount.

Searcy Denney Scarola Barnhart & Shipley, P.A. v. State · filed 2015-07-15(8)

Regardless of whether Aaron’s claims bill appropriation is categorized as a “judgment or settlement,” section 768.28(8) does not mandate that the fees collected or received cannot be less than 25%, only that the fees cannot be “in excess of 25 percent.” The statute places a cap on the recoverable attorneys’ fees, not a floor.

Section 768.28(5)’s liability limits apply only to tort actions, not claims under a contract.

Florida Department of Transportation v. Schwefringhaus · filed 2016-04-07(5)

We hereby reaffirm that section 768.28(5) applies only to tort actions, and we answer the second certified question in the negative.

Section 768.28(5) capped recovery against a municipality on a 2010 FCRA claim at $100,000.

City of Delray Beach v. DeSisto · filed 2016-07-20(5)

Accordingly, the court properly ruled that DeSisto’s recovery was capped at $100,000.

Section 768.28(8) permits attorneys’ fees of up to 25 percent of a judgment amount paid through a court order or a legislative claims bill.

Searcy, Denney, Scarola, Barnhart & Shipley, etc. v. State of Florida · filed 2017-01-31(8)

That reading results in our conclusion that the Legislature intended in section 768.28(8) to allow fees to be charged, demanded, received, or collected up to 25 percent of the judgment amount when payment is ordered by the circuit court, as well as when payment of all or part of that judgment is ordered by the Legislature in a claims bill, as expressly provided for in section 768.28(5).

Section 768.28(8) permits attorney’s fees of up to 25 percent of a judgment, including amounts paid through a legislative claims bill.

Grossman Roth, P.A. v. Mellen · filed 2017-06-21(8)

Read collectively “to achieve a consistent whole,” the Court concluded “that the Legislature intended in section 768.28(8) to allow fees to be charged, demanded, received, or. collected up to 25 percent of the judgment amount when payment is ordered by the circuit court, as well as when payment of all or part of that judgment is ordered by the Legislature in a claims bill, as expressly provided for in- section 768.28(5).” Id. at 1189-90 (citation omitted). ... Searcy, Denney is controlling in the instant case.

Section 768.28(5), as it stood in 2010, limits recovery to $200,000 in total for claims arising from the same incident of state negligence, even when multiple people are injured.

State v. Barnett · filed 2018-10-10(5)

The current case involves a single claim of negligence against the Department in the failure to properly investigate the family and the stepfather before closing its file. Thus, each estate's claim and the claim of the injured child arise from the same incident of negligence of the Department. Therefore, the $200,000 cap per incident or occurrence applies to limit recovery for all claims.

Under the 2010 version of section 768.28(5), the sovereign immunity waiver is limited to $200,000 total when multiple claims arise from the same negligent act by a state agency.

DEPT. OF FINANCIAL SERVICES v. BARNETT · filed 2019-01-09(5)

In our opinion in the instant case, we narrowly construed section 768.28(5), Florida Statutes (2010), to limit the sovereign immunity waiver to $200,000 1 when there are multiple claims arising out of the same negligent act(s) committed by the state agency.

Under the 2010 version of section 768.28(5), the sovereign immunity waiver is limited to $200,000 for multiple claims arising from the same negligent act by a state agency.

Department of Financial Services v. Barnett · filed 2019-01-09(5)

In our opinion in the instant case, we narrowly construed section 768.28(5), Florida Statutes (2010), to limit the sovereign immunity waiver to $200,0001 when there are multiple claims arising out of the same negligent act(s) committed by the state agency.

Under the 2010 version of section 768.28(5), claims arising from one overall injury-causing event share a $200,000 aggregate limit on payment by the state without further legislative action.

Michael Barnett, etc. v. State of Florida, Department of Financial Services · filed 2020-09-24(5)

Given this Court’s long-standing precedent that strictly construes Florida law waiving sovereign immunity, we answer the rephrased certified question in the affirmative and hold that the mass shooting committed by Patrick Dell is a single “incident or occurrence” for purposes of section 768.28(5), Florida Statutes (2010) (subsection (5)), and that the cumulative liability for all claims of injury resulting from the incident may not exceed the aggregate cap of $200,000 set forth in the statute.

Section 768.28(5) requires prior payments by a sovereign defendant to be set off against the statutory damages cap, rather than the jury's verdict.

Chronister, Sheriff of Hillsborough County v. Prahalad · filed 2026-05-22(5)

Here, as Mr. Prahalad concedes, the trial court erred in applying a setoff for prior payments by the Sheriff to the jury verdict rather than to the statutory cap. Accordingly, the judgment must be remanded to apply the setoff to the damages cap, thereby satisfying the statutory provision precluding liability above and beyond that amount.

Section 768.28(5) does not limit a judgment against a municipality to its statutory amounts when the municipality has purchased insurance coverage above those amounts.

Blaz v. Almany · filed 1982-02-12(5)

That Section 768.28 Florida Statutes does not limit a judgment to the amounts set forth in Section 768.28 (5) as to the automobile accident claim of the Plaintiffs herein where the City of Hollywood purchased insurance coverage from the Defendant, Hartford Life and Accident Insurance Company, in excess of the limit set forth in Section 768.28 (5).

Section 768.28 permits tort claimants to reduce damages against a state subdivision to judgment even when the judgment exceeds the statutory payment limit, so its sovereign immunity is not absolute.

Michigan Millers Mut. Ins. Co. v. Bourke · filed 1991-06-07

Section 768.28, Florida Statutes (1987), provides that the state, its agencies and subdivisions waive sovereign immunity for liability for torts up to the sum of $200,000 for all claims and judgments arising out of one incident or occurrence. Section 768.28 further provides that the amount of a judgment in excess of $200,000 may be reported to the legislature and may be paid in part or in whole only by further act of the legislature. ... Because the state's sovereign immunity is not absolute, and because of the fact that appellees can reduce their damages to judgment, we hold that appellees are "legally entitled to recover" their damages from the tortfeasor, and therefore are entitled to UM coverage from the Michigan Millers policy for any deficiency.

Section 768.28(16) preserves Florida’s immunity from suit in federal court unless a waiver explicitly and definitely applies there.

Orange Ridge, Inc. v. State of Fla. · filed 1988-07-22(16)

The complaint fails to reveal, and this Court’s independent research did not disclose, any Florida statute that “explicitly and definitely” waives sovereign immunity for an allegedly unconstitutional taking of property.

Section 768.28(18) does not waive a Florida state agency’s immunity from suit in federal court.

Tague v. Florida Fish and Wildlife Conservation Commission · filed 2005-05-25(18)

As such, § 768.28 affords no waiver of the FFWCC’s immunity for purposes of this federal lawsuit.

Section 768.28 does not waive Florida’s Eleventh Amendment immunity from suit in federal court.

Thomas A. Schopler, D.D.S. v. Rupert Bliss · filed 1990-06-22(16)

Nothing else in section 768.28 refers to actions brought in federal court. Consequently, the district court erred in interpreting section 768.28 as a statutory waiver of Eleventh Amendment immunity.

Section 768.28’s limited waiver covers traditional torts but does not waive Florida’s Eleventh Amendment immunity from federal constitutional tort claims under § 1983.

Magula v. Broward General Medical Center · filed 1990-08-15(16)

At the outset, the court notes that the limited waiver of Florida’s sovereign immunity in section 768.28 applies to traditional torts only and does not waive Florida’s eleventh amendment immunity from constitutional torts, such as an action under section 1983 in federal court.

Section 768.28(16) requires an explicit waiver of immunity from suit in federal court before a Florida statute can waive Eleventh Amendment immunity.

Connor v. Halifax Hospital Medical Center · filed 2001-03-05(16)

To the contrary, subsection 768.28(16) declares the legislature’s intention that Florida statutes not be construed to waive Eleventh Amendment immunity unless they explicitly waive immunity from suit in federal court.

Section 768.28(18) expressly retains Florida’s immunity from suit in federal court.

Shedrick v. District Board of Trustees of Miami-Dade College · filed 2013-04-23(18)

Plaintiffs point to no clear declaration of waiver by Florida, and, in fact, Florida has expressly retained its immunity from suit in federal court. See Fla. Stat. § 768.28(18).

Section 768.28(18) requires an explicit and definite waiver before any Florida statute can waive the State’s Eleventh Amendment immunity from suit in federal court.

Crisman v. Florida Atlantic University Board of Trustees · filed 2014-07-24(18)

Moreover, section 768.28(18) explicitly states no provision of the Florida Statutes may be construed to waive the State’s Eleventh Amendment immunity unless the waiver is explicitly and definitely stated to be a waiver of sovereign immunity.

Section 768.28(18) does not waive Florida state agencies’ Eleventh Amendment immunity from federal suit.

Carter v. State of Florida Department of Children and Families · filed 2022-07-26(18)

And Florida has not otherwise waived its agencies’ Eleventh Amendment immunity. See Fla. Stat. § 768.28(18).

Section 768.28(5)’s waiver for tort actions does not consent to a § 1983 suit against the State in federal court.

Blaxton v. State of Florida · filed 2022-11-14(5)

Thus, the waiver for tort actions under Fla. Stat. § 768.28(5), does not constitute consent to suit in federal court under § 1983.

Section 768.28(18) does not waive Florida’s immunity from federal civil rights suits in federal court.

Peart v. State of Florida · filed 2024-06-14(18)

Moreover, Florida has not waived its immunity from suit in federal civil rights actions.

Section 768.28(18) bars construing a Florida statute as waiving the state’s or its agencies’ immunity from suit in federal court.

Global Innovative Concepts, LLC v. State of Florida, Division of Emergency Management · filed 2024-06-18(18)

To the contrary, the only relevant Florida authority we have been able to locate says the opposite. See Fla. Stat. § 768.28(18) (“No . . . section of the Florida Statutes . . . shall be construed to waive the immunity of the state or any of its agencies from suit in federal court.”).

Section 768.28(18) requires an explicit and definite waiver before a Florida statute can waive the state’s or its agencies’ Eleventh Amendment immunity from suit in federal court.

Gargett v. Florida Department of Juvenile Justice · filed 2024-07-19(18)

Indeed, Florida Statute § 768.28(18) makes clear that no state statute should “be construed to waive the immunity of the state or any of its agencies from suit in federal court, as such immunity is guaranteed by the Eleventh Amendment to the Constitution of the United States, unless such waiver is explicitly and definitely stated to be a waiver of the immunity of the state and its agencies from suit in federal court.” Fla. Stat. § 768.28(18). In short, Florida’s Eleventh Amendment immunity has not been waived as to the FCRA claim asserted in this Court.

Section 768.28 waives Florida’s sovereign immunity for tort suits but does not expressly consent to such suits in federal court.

Arthur v. Florida Department of Transportation · filed 1984-07-02(1)

Although section 768.28, Fla.Stat., ... waives the sovereign immunity of the State or any of its “agencies or subdivisions” for tort suits in an “appropriate forum,” no specific mention is made, as required by law, of tort suits in federal court.

Section 768.28 does not waive Florida's sovereign immunity from Section 1983 civil rights actions.

Spooner v. DEPT. OF CORRECTIONS · filed 1986-05-19

Gamble and Shinholster hold that Florida's waiver of sovereign immunity does not encompass Section 1983 actions, while Meeker, now overruled by Gamble, reached a contrary view. We agree with the Gamble and Shinholster decisions' construction of the pertinent statutes and adopt as our own the reasoning and analysis of the opinion in Gamble.

Section 768.28(9)(a) does not bar a § 1983 action against municipal officials.

Southern Alliance Corp. v. City of Winter Haven · filed 1987-03-18(9)(a)

The trial court predicated its dismissal of the claims against the employees on the basis that Southern's complaint did not allege sufficient facts demonstrating a malicious purpose or willful and wanton conduct on the employees' part to remove the immunity provided by section 768.28(9)(a). This was error. Just as the statute is no bar to an action against a municipality, it does not bar an action against the municipality's officials.

Section 768.28 does not waive Florida's Eleventh Amendment or common law immunity from suits against the State and its agencies under 42 U.S.C. § 1983.

Spooner v. Department of Corrections · filed 1987-09-24

Has the State of Florida, pursuant to Section 768.28, Florida Statutes (1983), waived its Eleventh Amendment and state common law immunity and consented to suits against the State and its agencies under 42 U.S.C. § 1983? ... We answer the question in the negative for the reasons expressed in our recent decision in Hill v. Department of Corrections, 513 So.2d 129 (Fla. 1987).

Section 768.28(9)(a) does not bar a federal statutory claim against a state employee in her individual capacity.

Hill v. STATE OF FLA. DHRS · filed 1989-07-11(9)(a)

The substantive law to be applied in this case is federal, and any remedies fashioned under that law will be federal. § 768.28 is not a bar to this action in federal court.

Section 768.28(9)(a) does not bar an individual-capacity claim against a state employee under federal law.

Hill v. Florida Department of Health & Rehabilitative Services · filed 1989-07-11(9)(a)

The substantive law to be applied in this case is federal, and any remedies fashioned under that law will be federal. § 768.28 is not a bar to this action in federal court.

Section 768.28(17) governs whether Florida statutes waive the state’s immunity from suit in federal court; it does not restrict waivers under federal statutes.

Nana's Petroleum, Inc. v. Clark (In Re Nana's Petroleum, Inc.) · filed 1999-05-03(17)

This section does not (nor does it have the authority to) prohibit federal statutes from being construed to waive sovereign immunity. Rather, § 768.28(17) speaks only to “the Florida Statutes.”

Section 768.28(18) requires an explicit and definite statement to waive Florida’s or its agencies’ immunity from suit in federal court.

Brown v. Citizens Property Insurance Corporation · filed 2020-04-03(18)

However, none of these exceptions to immunity relate to a waiver of Citizens’ immunity from suit in federal court provided by the Eleventh Amendment. Indeed, in its sovereign immunity statute, Florida states that “[n]o provision . . . of any . . . section of the Florida Statutes . . . shall be construed to waive the immunity of the state or any of its agencies from suit in federal court . . . unless such waiver is explicitly and definitely stated to be a waiver of the immunity . . . from suit in federal court.” § 768.28(18), Fla. Stat.

Section 768.28 waives Florida’s sovereign immunity for tort actions in state court but does not waive its Eleventh Amendment immunity from suit in federal court.

Duarte · filed 2026-01-16(18)

Although § 768.28 waives the States’s immunity for tort actions brought in state court, the statute does not waive its Eleventh Amendment immunity from suit in federal court.

Section 768.28(9)(a) does not categorically bar governmental vicarious liability for an employee’s intentional tort; the employee’s conduct and scope of employment may require factual resolution.

Brisk v. City of Miami Beach, Fla. · filed 1989-04-07(9)(a)

The defendants contend that Fla. Stat. § 768.28(9)(a) prohibits vicarious liability for intentional torts such as assault and battery. The Florida courts have rejected this contention. ... The exact nature of the officers’ conduct in this case, and the question of whether they were acting outside the scope of their employment raise questions of fact that defeat defendants’ motion for judgment on the pleadings.

Section 768.28(9)(a) shields a county from an intentional infliction of emotional distress claim because the tort requires reckless conduct equivalent to willful and wanton conduct.

Samedi v. Miami-Dade County · filed 2001-01-26(9)(a)

As the “reckless conduct” requirement in the first element of intentional infliction of emotional distress “is the equivalent of willful and wanton conduct” in section 768.28(9)(a), ... sovereign immunity shields County from Plaintiffs Count XIII, as that cause of action requires proof of willful and wanton conduct.

Section 768.28(9)(a) shields a county from liability for an employee’s malicious, wanton, or willful conduct.

Moore v. Miami-Dade County · filed 2007-07-18(9)(a)

Thus, given Moore’s express allegations of malicious, wanton, or willful conduct by the County’s employees, I find that the County is not liable under § 768.28(9) of the Florida Statutes, and is therefore entitled to sovereign immunity on all state law claims.

Section 768.28(9) bars government entity liability for employees’ willful and wanton actions.

Earnest E. Tillman v. Henriquez · filed 2013-05-17(9)

A government entity cannot be liable for the willful and wanton actions of its employees.

Section 768.28(9) protects a municipality from malicious prosecution liability because the claim requires malice.

Gomez v. Lozano · filed 2011-01-21(9)

If Mr. Gomez does not allege malice, then he cannot legally set forth a claim for malicious prosecution; if Mr. Gomez alleges malice, then § 768.28(9) protects Miami Beach from liability.

Section 768.28(9)(a) shields a city from liability for malicious acts committed by its employees.

City of Fort Lauderdale v. Scott · filed 2011-02-28(9)(a)

Florida law provides immunity for the City for malicious actions taken by its employees. Therefore, § 768.28(9)(a) precludes the claim for slander of title against the City.

Section 768.28 bars governmental liability for an employee’s malicious acts.

Doe v. Miami-Dade County · filed 2011-05-23(9)(a)

Brosky’s acts were obviously malicious, and therefore cannot form the basis of MDPD’s liability, because of Fla. Stat. § 768.28.

Section 768.28(9) bars government entity liability for the willful and wanton actions of its employees.

Tillman v. Orange County · filed 2013-05-17(9)

A government entity cannot be liable for the willful and wanton actions of its employees.

Section 768.28(9)(a) shields a county from tort liability for an officer’s willful and wanton conduct, and a court may dismiss a claim when that immunity is apparent from the complaint.

Gregory v. Miami-Dade County · filed 2015-02-13(9)(a)

Thus, Plaintiffs’ claims of battery, false imprisonment, and loss of filial consortium against the County (Counts III, VII, and VIII) are subject to dismissal because, on the face of the Third Amended Complaint, the County is entitled to the affirmative defense of sovereign immunity.

Section 768.28(9)(a) shields a governmental entity from vicarious liability when the complaint alleges that its employees acted with willful and wanton disregard for human rights.

Whitaker v. Miami-Dade County · filed 2015-02-20(9)(a)

As such, the County is shielded by sovereign immunity from the vicarious liability of the officers’ acts pursuant to Florida Statute 768.28(9)(a).

Section 768.28(9)(a) bars claims against the state and its subdivisions for intentional infliction of emotional distress and malicious prosecution arising from employees’ willful and wanton conduct.

Weiland v. Palm Beach County Sheriff's Office · filed 2015-07-08(9)(a)

Florida courts have long recognized that Fla. Stat. § 768.28(9)(a) — which provides that the State and its subdivisions “shall not be liable in tort for the acts or omissions of an officer, employee, or agent . . . committed . . . in a manner exhibiting wanton and willful disregard of human rights, safety, or property” — bars claims for both intentional infliction of emotional distress and malicious prosecution.

Section 768.28(9)(a) bars malicious prosecution claims against governmental entities and officials in their official capacities because the claim requires proof of malice.

C.P. ex rel. Perez v. Collier County · filed 2015-11-18(9)(a)

Because there can be no claim for malicious prosecution without a showing of malice, and because Fla. Stat. § 768.28(9)(a) bar sclaims against the entity or officials acting in their official capacities for conduct committed with malice, Florida law is also clear that there can be no claim for malicious prosecution against state agencies or subdivisions.

Section 768.28(9)(a)’s bad-faith exception to vicarious liability requires actual malice based on the employee’s subjective intent.

Dunn v. City of Boynton Beach · filed 2016-06-14(9)(a)

The reference to “bad faith” in section 768.28(9)(a) is equivalent to actual malice, which depends on subjective intent.

Section 768.28(9)(a) gives Florida municipalities sovereign immunity from liability for an officer’s, employee’s, or agent’s bad-faith, malicious, or wanton and willful conduct.

J. Pearl Bussey-Morice v. Kennedy · filed 2016-08-08(9)(a)

Florida Statute § 768.28(9)(a) provides Florida municipalities sovereign immunity from liability arising out of instances where one of its’ “officer[s], employee[s], or agent[s] acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Fla. Stat. § 768.28(9)(a); Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012).

Section 768.28(9)(a) bars a tort claim against a government entity when the pleaded facts could only establish that its employee acted in bad faith, with malicious purpose, or with wanton and willful disregard of rights.

Gregory v. Miami-Dade County, Florida · filed 2017-11-15(9)(a)

In other words, plaintiffs may use alternative pleading to bring suit against both a government entity and an individual employee, but, if the factual allegations can occur only from bad faith or malicious or wanton and willful conduct, then the claim against the government entity fails under § 768.28.

Section 768.28(9)(a) shields a local government from liability for an employee’s acts committed in bad faith, with malicious purpose, or with wanton and willful disregard of human rights, safety, or property.

NP A MINOR BY EP HIS NATURAL GUARDIAN v. THE SCHOOL BOARD OF OKALOOSA COUNTY FLORIDA · filed 2019-09-30(9)(a)

Under Florida’s doctrine of respondent superior, a local government is liable in tort for the actions or omissions of an employee committed within the scope of his or her employment, but it is shielded from liability if the employee “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Fla. Stat. § 768.28(9)(a).

Section 768.28(9)(a) shields a city from a malicious prosecution claim arising from its employees’ malicious acts, even when the plaintiff characterizes the required malice as legal rather than actual malice.

Timothy Allen Davis, Sr. v. City of Apopka · filed 2018-04-12(9)(a)

Florida law “bars an action for malicious prosecution against the state or its subdivisions arising from the malicious acts of their employees.” Johnson v. Fla. Dep’t of Health & Rehab. Servs., 695 So. 2d 927, 930 (Fla. Dist. Ct. App. 1997) (citing Fla. Stat. § 768.28(9)(a)). ... We therefore reject Davis’s argument and hold that the district court correctly dismissed his malicious prosecution claim against the City.

Section 768.28(9)(a) shields municipalities from vicarious tort liability for officers’ bad-faith or malicious acts.

Menard v. Miami-Dade County · filed 2019-09-06(9)(a)

Therefore, a municipality cannot be held vicariously liable for the bad faith or malicious actions of its officers, employees and agents.

Section 768.28(9)(a) immunizes a city from tort liability for an employee’s acts committed with malicious purpose or wanton and willful disregard of rights.

Barmapov-Segev v. City of Miami · filed 2019-11-20(9)(a)

Based on these allegations of malicious and willful disregard for the Plaintiff’s rights, § 768.28(9)(a) immunity applies.

Section 768.28(9)(a) bars false arrest and battery claims against a county when the alleged officer conduct amounts to bad faith or malicious purpose.

Casado v. Miami-Dade Cnty. · filed 2018-10-23(9)(a)

Based on the factual allegations in the present case, the claims for false arrest/false imprisonment and battery against the County are barred under Section 768.28(9)(a).

Section 768.28(9)(a) bars a malicious prosecution claim against a sheriff because the claim requires malice.

Barnett v. MacArthur · filed 2020-04-15(9)(a)

That claim, which requires a showing of malice, is barred by Fla. Stat. § 768.28(9)(a).

Section 768.28(9)(a) does not establish a county’s sovereign immunity at the pleading stage when the alleged officer misconduct plausibly falls short of bad faith.

Khoury v. Miami Dade County · filed 2020-10-27(9)(a)

The County’s sovereign immunity claim pursuant to Fla. Stat. § 768.28(9)(a) accordingly fails.

Section 768.28(9)(a) immunizes a municipality from tort liability for an officer’s bad-faith, malicious, or wanton and willful conduct, but permits alternative claims against the municipality and officer at the pleading stage.

Jewell v. Town of Davie · filed 2020-12-16(9)(a)

Although Defendants are correct that such allegations—if proven—would immunize the Town of Davie from liability for false imprisonment and excessive force under section 768.28(9)(a), Federal Rule of Civil Procedure 8(e)(2) permits a plaintiff to plead alternative theories of recovery.

Section 768.28(9)(a) permits a tort claim against a municipality to proceed when the complaint supports an allegation that its employee acted in good faith, even if it also alleges bad faith against the employee.

Johnson v. Wilson · filed 2019-11-27(9)(a)

Since Johnson has alleged sufficient facts to support finding Wilson was acting in good faith while effecting Johnson’s arrest, the state court claims will survive this Motion to Dismiss.

Section 768.28(9)(a) applies to a sheriff’s office and permits vicarious liability for an employee’s battery committed within the scope of employment.

Howard v. St. John's County Sheriff · filed 2021-09-17(9)(a)

A city, as well as its associated units, such as a sheriff’s office, falls under the ambit of section 768.28(9)(a). ... For these reasons, Howard plausibly states a basis on which the Sheriff could be held liable for a battery if committed by Deputy Briggs as alleged in Count VI.

Section 768.28(9)(a) permits a plaintiff to sue a governmental entity for a tort committed by its employee within the scope of employment.

Kubisiak v. Gualtieri · filed 2024-03-18(9)(a)

As it is uncontested that Deputy Mowatt’s actions were within the scope of his employment, Defendant Gualtieri may be held liable in his official capacity.

Section 768.28 limits the State’s liability for an employee’s tort to acts within the scope of employment, even when liability is claimed under the dangerous instrumentality doctrine.

Rabideau v. State · filed 1980-12-04(1), (5)

The foregoing statute waiving sovereign immunity contains the specific limitation that the State is only liable for the tort of its employee while he is acting within the scope of his office of employment under circumstances in which the State, if a private person, would be liable to the claimant. Since § 768.28 contains this specific limitation, we are unable to construe subsection (5), which does not contain the same statement relative to state employees, to nullify such qualification to the State's liability.

Section 768.28 does not make the state liable for an employee’s acts outside the scope of employment merely because the employee has a state-owned vehicle assigned twenty-four hours a day.

Rabideau v. State · filed 1982-01-28(5)

We hold, therefore, that twenty-four-hour assignment of a state-owned vehicle to a state employee does not enlarge state liability under section 768.28 to include acts committed outside the employee's scope of employment.

Section 768.28 permits a negligent hiring or retention claim against a school board because filling a teaching position is an operational function.

Willis v. Dade County School Bd. · filed 1982-03-02

We find, however, that the trial court erred in dismissing with prejudice Count III of the amended complaint on the sole ground that the doctrine of sovereign immunity bars a cause of action against the school board for the negligent hiring or retention of the teacher.[1] We reject appellee's argument that the actual hiring of a teacher is a planning function for which the county is immune from suit, rather than an operational function for which the county may be subject to liability.

Section 768.28’s waiver covers a Florida National Guardsman’s negligence during weekend training when state officials retain actual control over him.

Crawford v. DEPT. OF MILITARY AFFAIRS, ETC. · filed 1982-04-14

In summary, we conclude that at the time of the accident here, Williams was a state employee for whose negligent acts the state has waived sovereign immunity under section 768.28.

Section 768.28 permits government liability for personal injuries caused by negligent driving of fire equipment to a fire or negligent handling of equipment at the scene.

City of Daytona Beach v. Palmer · filed 1985-04-04

We distinguish these types of discretionary fire-fighting decisions from negligent conduct resulting in personal injury while fire equipment is being driven to the scene of a fire or personal injury to a spectator from the negligent handling of equipment at the scene. Governmental entities are clearly liable for this type of conduct as a result of the enactment of section 768.28, Florida Statutes (1983).

Section 768.28(1) permits a tort claim against a state agency when an employee’s alleged conduct may have been within the scope of employment, even if the conduct was unauthorized.

Hennagan v. DEPT. OF HIGHWAY SAFETY · filed 1985-04-09(1)

Taking the allegations of the complaint as true, as we must on a motion to dismiss, it cannot be said that the factual situation alleged as the basis for the various torts claimed is outside the scope of the officer's employment as a matter of law. Counts I through IV of the amended complaint allege actions by Jones which may well have been undertaken, in whole or in part, within the scope of his employment to further the Department's interests, and these allegations sufficiently state causes of action.

Under section 768.28(9)(a), whether a state employee reentered the scope of employment after a personal errand may be a question of fact.

Drinnenberg v. State, Department of Transportation · filed 1985-12-18(9)(a)

The issue is whether Brown was acting within the scope of his employment at the time of the accident. See section 768.28(9)(a), Florida Statutes (1981). Apparently Brown deviated from the scope of his employment when he went to the mall. There would be, nonetheless, an issue of fact as to whether he thereafter reentered the scope of his employment after departing from the mall.

Section 768.28(9)(a) permits municipal liability for an employee’s tort committed within the scope of employment unless the employee acted in bad faith, with malicious purpose, or with wanton and willful disregard.

Maybin v. Thompson · filed 1987-11-04(9)(a)

The legislature has relieved municipalities of liability for the tortious actions of employees only when the employee's acts or omissions are committed "outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property." § 768.28(9)(a), Fla. Stat. (Supp. 1986).

Section 768.28(9)(a) permits governmental liability for an employee’s intentional tort committed within the scope of employment unless the employee acted in bad faith, with malicious purpose, or with wanton and willful disregard of human rights, safety, or property.

Richardson v. City of Pompano Beach · filed 1987-09-09(9)(a)

As this statute providing for governmental immunity in certain situations has evolved, it appears the governmental entity is liable for all torts, negligent ones and intentional ones alike, unless they are committed outside the course and scope of one's employment or unless the actor was acting in bad faith or with a malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

Section 768.28(1) waives sovereign immunity only when a public employee acts within the scope of employment.

Curtis v. BULLDOG LEASING COMPANY · filed 1987-09-30(1)

The statute waiving sovereign immunity specifically provides that a waiver of immunity occurs only if the employee is "acting within the scope of his office or employment" Section 768.28(1), Florida Statutes (1985). ... However, under the undisputed facts of this case, we cannot hold that this off-duty policeman, outside of his jurisdiction, acted within the scope of his employment. As a consequence, he did not waive the immunity of his sovereign.

Section 768.28 waives sovereign immunity for a breach of the duty to warn a person within a government entity’s duty of care of a known danger.

McCall v. DEPT. OF HEALTH & REHAB. SERV. · filed 1988-11-23

The failure to warn an individual who falls within the sovereign entity's duty of care constitutes a breach of the common law duty of care, and that breach is subject to the wavier of sovereign immunity under section 768.28.

Section 768.28(9)(a) transfers liability for covered torts by state employees to the state or other governmental entity while preserving the underlying cause of action.

State, Dept. of Corrections v. Koch · filed 1991-05-03(9)(a)

We find the sovereign immunity statute does not abolish the common law right of recovery upon which the unrelated works exception to the workers' compensation act is based.

Section 768.28(9)(a) permits a municipality's liability for tortious conduct by a duly employed police officer acting in the purported enforcement of the law within the city to be decided by a jury.

Woodall v. City of Miami Beach · filed 1992-05-19(9)(a)

The opposite is true with respect to Santiago’s allegedly tortious conduct in arresting and imprisoning the plaintiff and in the use of force in doing so. It is obvious that at least a jury question1 is presented as to the liability of a municipality'for the conduct, like this, of a duly employed police officer in the purported enforcement of the law within the city. § 768.28(9)(a), Fla. Stat. (1991); City of Miami v. Simpson, 172 So.2d 435 (Fla.1965); Maybin v. Thompson, 514 So.2d 1129 (Fla. 2d DCA 1987); Richardson v. City of Pompano Beach, 511 So.2d 1121 (Fla. 4th DCA 1987), review denied, 519 So.2d 986 (Fla.1988); see Dean v. Rouillier, 597 So.2d 961 (Fla. 5th DCA 1992).

Section 768.28 makes a governmental employer civilly liable in the place of a liable fellow employee.

Holmes County School Bd. v. Duffell · filed 1994-01-06

The effect of section 440.11(1) when the claimant is a public employee is to open the governmental employer to civil liability in addition to its worker's compensation obligations. That is because, in the case of a public employee, the government employer steps into the shoes of the liable fellow employee. § 768.28, Fla. Stat. (1991).

Section 768.28(5) holds a city that undertakes to supervise children to the same standard of reasonable care as a private person under like circumstances.

Collazos v. City of West Miami · filed 1996-12-18(5)

Here, however, where the City has exercised its discretion to provide adult supervision for children in their after-school park activities,[4] the City must perform this service in a reasonably prudent manner, just as a private individual under like circumstances.

Section 768.28(5) subjects the State to the same duty of care as a private owner when a public swimming area operates on its property.

Garcia v. STATE, DEPT. OF NAT. RESOURCES · filed 1998-02-25(5)

The duty of care owed by the State is the same as the duty owed by a private owner with regard to operating (or permitting another to operate) a public swimming area on its property—that is, the duty to operate that beach and swimming area safely (or to see that it is operated safely). See § 768.28(5), Fla. Stat. (1995); Avallone, 493 So.2d at 1005.

Section 768.28(9)(a) shields a city from liability for officers’ acts committed in bad faith, with malicious purpose, or with wanton and willful disregard; disputed evidence about that conduct can preclude summary judgment.

Baldwin v. City of Fort Lauderdale · filed 2007-07-11(9)(a)

Section 768.28(9)(a), Florida Statutes, provides, in relevant part, that the State and its subdivisions shall not be liable for “the acts or omissions of an officer, employee, or agent ... committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Because the case was before the trial court on motion for summary judgment, the City was entitled to judgment in its favor if the only conclusion that could be reached by a reasonable jury was that the *1016police acted in bad faith, with a malicious purpose, or in wanton and willful disregard of human rights, safety, and property. See Willingham v. City of Orlando, 929 So.2d 43, 48 (Fla. 5th DCA 2006). We do not believe this was the case here.

Section 768.28(9)(a) bars tort liability against a state agency for an employee’s acts alleged to be in bad faith.

Hall v. Knipp · filed 2008-05-21(9)(a)

Sovereign immunity bars appellant's claim against DOC because the amended complaint alleges the correctional officer acted in bad faith. "The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." § 768.28(9)(a), Fla. Stat. (2005).

Section 768.28(9)(a) permits municipal liability for an employee’s intentional tort committed within the scope of employment if the employee did not act in bad faith, with malicious purpose, or with wanton and willful disregard of the plaintiff’s rights.

City of Boynton Beach v. Weiss · filed 2013-08-14(9)(a)

While battery is an intentional tort, the City may be held liable for an employee’s intentional act(s) as long as the employee is acting within the course and scope of his employment and the act or omission is not committed in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of the plaintiffs rights.

Section 768.28(9) does not bar a claim against a city based on allegations against its employee when the separately pleaded claims can stand independently.

CITY OF DUNEDIN v. PIRATE'S TREASURE, INC. · filed 2018-04-13(9)

Consequently, according to the City, the claims are barred by section 768.28(9), Florida Statutes (2011), because the pleadings incorporate "allegations that the City’s negligence was the result of an employee’s bad faith, malicious purpose, or wanton disregard for property." We reject this argument. The separate counts against the City and its employee are pleaded sufficiently and could stand independently.

Section 768.28(9)(d) grants a law enforcement officer’s employing agency immunity from judgment, but not immunity from suit.

Ross v. City of Jacksonville · filed 2019-06-12(9)(d)

Appellant is correct that, unlike section 768.28(9)(a), which grants individual state officers immunity from judgment and suit in certain cases, section 768.28(9)(d) only grants employing agencies immunity from judgment.

Section 768.28 does not waive municipal sovereign immunity for an employee’s negligent act outside the course and scope of employment, including an accident while the employee is traveling to work.

CITY OF MIAMI v. ROBINSON · filed 2023-05-31(1), (9)

The City presented a factual predicate establishing nonwaiver of sovereign immunity under sections 768.28(1) and 768.28(9). ... The accident occurred while the employee acted outside the course and scope of her employment. Because no factual dispute exists, the trial court should have granted summary judgment in favor of the City.

Section 768.28(9)(a) gives a municipality sovereign immunity when an off-duty officer causes an accident while commuting home outside the scope of employment.

CITY OF WINTER PARK vs ROSEMARY VEIGLE · filed 2023-06-30(9)(a)

Therefore, as a matter of law, Winter Park is entitled to sovereign immunity from Plaintiff’s suit. See § 768.28(9)(a), Fla. Stat.; Willingham, 929 So. 2d at 48.

Section 768.28(1) permits municipal liability for an employee’s negligence only when the employee acted within the scope of employment.

City of Gainesville, d/b/a Gainesville Regional Utilities v. Rodgers · filed 2023-11-29(1)

Accordingly, the City could only be liable for Stormant’s negligence if he was acting within the course and scope of his employment at the time of the crash.