Fla. Stat. § 768.28

Section 768.28(9)(a) does not treat an allegation of unreasonable force as an allegation that an officer acted in bad faith, with malicious purpose, or with wanton and willful disregard.

Smola v. Chronister · filed 2024-03-08(9)(a)

But an allegation that a use of force was “unreasonable” is not equivalent to an allegation that a use of force was “committed in bad faith,” committed with “ma- licious purpose,” or committed in “a manner exhibiting wanton and willful disregard of human rights, safety, or property.”

Section 768.28(1)’s waiver of sovereign immunity does not apply when state employees act outside the course and scope of their employment.

Department of Corrections v. Steven P. Beebe, Semir Jusic, Stephen Ryan Mote, Joseph Jimmie Ohern, and Rachel Jessica McKinney. · filed 2025-12-31(1)

Because the correctional officers were acting outside the course and scope of employment, the waiver of sovereign immunity found in section 768.28(1) does not apply.

Section 768.28(1)'s waiver of sovereign immunity does not cover a city's discretionary policy decisions about police training.

Lewis v. City of St. Petersburg · filed 2001-08-06(1)

A city's decision regarding how to train its officers and what subject matter to include in the training is clearly an exercise of governmental discretion regarding fundamental questions of policy and planning. Because Lewis challenges the reasonableness of basic policy decisions made by the City, the "discretionary" function exception to the waiver of sovereign immunity applies and her claim is barred.

Section 768.28(1)’s waiver of sovereign immunity does not cover discretionary decisions about police training and supervision.

Gelbard v. City of Miami · filed 2012-02-28(1)

As such, Defendant’s decisions involving the training of its police force are considered a discretionary function. Therefore, this claim is barred by sovereign immunity and must be dismissed with prejudice.

Section 768.28’s waiver of sovereign immunity covers operational police conduct, including an officer’s use of a firearm, unless the conduct qualifies as discretionary.

Shehada v. Tavss · filed 2013-03-27

Here, construing the record in a light most favorable to Plaintiffs, the Court finds issues of fact precluding sovereign immunity on Plaintiffs’ wrongful-death and assault claims. ... Accordingly, Tavss’s use of a firearm would remain “operational” and not “discretionary,” and sovereign immunity would not apply.

Section 768.28’s waiver of sovereign immunity does not cover discretionary policy decisions, including the content of a sheriff’s deputy training program.

Ermini v. Scott · filed 2017-04-06(1)

Thus, because Mapes challenges the reasonableness of basic policy decisions made by the Sheriff Scott, the discretionary function exception to the waiver of sovereign immunity applies and her claim is barred.

Section 768.28(1)’s waiver of sovereign immunity does not cover discretionary police decisions made during a serious emergency that requires choosing among risks to the public.

Joanne Cooper v. Rutherford · filed 2020-09-29(1)

Even if a complaint contains adequate allegations showing that a private person would be liable in tort, the sovereign immunity waiver does not apply if the challenged act was “discretionary” rather than “operational.” See Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001). ... Given the choices available to them—allowing an armed suspect to escape with multiple hostages and potentially starting a police chase or keeping an armed suspect with hostages (who might in any event be harmed) in a car in a restaurant drive-through—we conclude that the police emergency exception applies.

Section 768.28 permits negligence claims based on failure to implement an existing policy, but preserves sovereign immunity for discretionary policy decisions.

Macauley v. Collier County Sheriff Office · filed 2021-10-25(1)

At this point, the only negligence theory under which the Estate could proceed without running afoul of sovereign immunity would be negligent retention/training for failure to implement an existing policy. To the extent that Count IV contains any other theories, they are dismissed without prejudice on sovereign immunity grounds.

Section 768.28 leaves a public college immune from negligence liability for its discretionary development of policies and procedures.

Doe v. New College of Florida · filed 2023-09-28(1)

The development of policies and procedures is a discretionary, planning-level, function that is immune from suit, and Defendant is entitled to summary judgment in its favor on this theory of Plaintiff’s negligence claim.

Section 768.28 permits liability for negligent operational conduct after an arrest decision, while discretionary decisions remain protected by sovereign immunity.

Waters v. City of Sunrise · filed 2022-04-03

Similarly, in this case, the decision to arrest Decedent was a discretionary decision, but the negligent conduct in failing to exercise reasonable care in rescuing Decedent who was in custody, was an operational task subject to a waiver of sovereign immunity.

Section 768.28’s waiver of sovereign immunity does not cover a sheriff’s discretionary decisions about officer training.

Hodges v. Hunter · filed 2024-08-21

Alternatively, if Hodges’ claim is based on the alleged negligence of the Sheriff himself, even if Hodges asserts a claim that would subject a private person to liability, the Sheriff is immune. This is so because the acts Hodges complains of were an exercise of discretionary functions.

Section 768.28(1)'s waiver of sovereign immunity does not cover negligent police-training claims based on discretionary policy and planning decisions.

Sanguinetti · filed 2026-02-20(1)

In any event, Mr. Rambosk and Collier County are immune from state lawsuits alleging that they negligently trained police officers, as “decision[s] regarding how to train . . . officers and what subject matter to include in the training [are] clearly an exercise of government discretion regarding fundamental questions of policy and planning.”

Section 768.28 waives sovereign immunity broadly, but discretionary governmental prosecutorial functions remain immune from tort liability.

Weston v. State · filed 1979-07-24

In keeping with Commercial Carrier Corporation, we, thus, do not consider that sovereign immunity has been waived for the exercise of such governmental, prosecutorial functions.

Section 768.28 waives governmental immunity for tortious conduct by Florida government units, while discretionary functions remain outside liability.

Neilson v. Dept. of Transportation · filed 1979-11-02

The concept on which appellees were released from the case has now been expressly disapproved by our supreme court. See, Commercial Carrier Corp. v. Indian River County and Cheney v. Dade County, 371 So.2d 1010 (Fla. 1979), declaring that the doctrine of governmental immunity was abolished in this state when Section 768.28, Florida Statutes became effective. All units of government are now liable for their tortious conduct.

Section 768.28 does not subject policy making, planning, or judgmental governmental functions to traditional tort liability.

Ellmer v. City of St. Petersburg · filed 1979-12-12

Applying this test to the facts at hand, we believe that the "negligence" attributed to the city in this case falls within the scope of its discretionary planning level function. The alleged failure to warn of riot conditions was but an aspect of the larger responsibility of providing police protection from the riot and restoring law and order to the city streets.

Section 768.28 waives municipal sovereign immunity for operational level activities, including a police officer's failure to direct traffic as assigned.

Weissberg v. City of Miami Beach · filed 1980-06-03

Since the procedure had been established to provide police officers to direct traffic at the worksite of a utility, the failure to ensure that a traffic device is functioning properly is no different than to ensure that the officer assigned will properly carry out his function of directing traffic. Both are simply operational level activities.

Section 768.28 does not bar a negligence suit over the release of an individual mental patient when the release is not a basic policy decision and the State has not shown that its personnel made a considered decision.

Bellavance v. State · filed 1980-11-13

The specific, individual act of releasing Riccardelli simply does not rise to the level of "basic policy decisions" which call for judicial restraint. Further, the State has not demonstrated that the personnel involved, after consciously balancing risks and advantages, made a considered decision in releasing Riccardelli. Therefore, we think that this cause must be heard on its merits.

Section 768.28's discretionary governmental function exception protects a school board's decisions about school bus stop locations and motorist warning signs from tort liability.

Harrison v. Escambia County School Bd. · filed 1982-06-23

The issue in this case is whether sovereign immunity bars appellant's negligence action against the School Board. The trial judge ruled that it did, and dismissed appellant's complaint seeking damages for the death of his eleven-year old child who was struck by an automobile while enroute to catch a school bus at an allegedly negligently located school bus stop. Appellant maintains that this ruling was in error under the holding of Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla. 1979), and related cases, because the actions of the School Board, in negligently selecting "the most reasonably safe locations available" for school bus stops (and failure to provide adequate warning signs for motorists) as directed by Section 234.112, Florida Statutes (1977),[1] constituted an "operational," not "planning" function, and its actions were therefore not protected under the "`discretionary' governmental function" exception to the sovereign immunity waiver statute, Section 768.28, Florida Statutes (1977), as announced by the court in Commercial Carrier. Our review leads us to the conclusion that the trial judge ruled correctly, and we affirm.

Section 768.28 permits municipal tort liability for negligent operational activity, including maintenance of park equipment.

Jenkins v. City of Miami Beach · filed 1980-10-14

However, the very same inquiry requires us to conclude that the City's alleged negligent maintenance of a water fountain in the park is operational level activity for which it can be held liable.

Section 768.28 permits liability for a government's negligent design, construction, or maintenance of a facility after it chooses to act, even if the initial decision was discretionary.

Collom v. City of St. Petersburg · filed 1981-06-03

Before Florida expressly waived sovereign immunity by the enactment of section 768.28, Florida Statutes (1973), liability of governmental units was dependent upon whether a challenged activity was "governmental" or "proprietary." ... But immunity of a government for negligently performing an act no longer exists, even though the initial decision to act may have been purely discretionary, and not compelled in any way.

The state's waiver of sovereign immunity does not extend to discretionary policy decisions about a road's curve, median, or signalization.

Ingham v. State Dept. of Transp. · filed 1981-06-05(5)

We have reviewed that order in the context of the cited cases, together with the other cases bearing on this subject, and conclude that the trial court was correct and quote from the order as follows: In the case before the Court, the plaintiff alleges that the Department of Transportation was negligent in three respects: First, in constructing State Road S-583 in Hillsborough County with a curve; Second, with respect to the position, shape and size of a median; and, Third, in failing to provide adequate signalization. This Court is of the view that under Ferla[1] and Commercial Carrier,[2] these three activities constitute discretionary policy functions and not operational activity.

Section 768.28 broadly waives sovereign immunity, but discretionary governmental functions remain immune from tort liability.

Ralph v. City of Daytona Beach · filed 1982-03-10

Although section 768.28 evinces the intent of the legislature to waive sovereign immunity on a broad basis, certain "discretionary" governmental functions remain immune from tort liability.

Section 768.28 permits a negligence claim when a government chooses to alter a natural feature but fails to design or perform the alteration reasonably.

Mathews v. City of St. Petersburg · filed 1981-07-08

That principle applies here. While the city had the discretion to decide whether to alter the natural state of Booker Creek, once it decided to do so, the alterations had to be designed and performed in a reasonable manner.

Section 768.28's waiver of sovereign immunity covers mandatory municipal building inspections as operational level activity.

Jones v. City of Longwood, Florida · filed 1981-09-23

We cannot agree with the city that all inspections undertaken by a governmental entity involve at every stage only discretionary or planning level activity or that the courts should, for policy reasons, carve out exceptions not contained in section 768.28, Florida Statutes (1979). Here the ordinance leaves no discretion in the building inspector or fire chief, but requires them to periodically inspect all buildings and structures within the City of Longwood. The word "periodically" does not leave sufficient discretion in those officials to elevate, to a planning level, their decisions as to when and how often to make inspections. Hence we hold that their acts and functions constitute operational level activity.

Section 768.28(1) permits a compensatory damages claim against a governmental agency for an employee’s negligent operation of a motor vehicle within the scope of employment because that activity is operational.

Sintros v. LaValle · filed 1981-10-14(1)

Without sophistry we hold that, without regard to the "planning or discretionary" level of the reason for the activity, the operation of a motor vehicle by a governmental employee within the scope of his governmental employment is an "operational level" activity and that a complaint properly alleging that such activity was negligently performed and that such negligence was the legal cause of plaintiff's injuries states a cause of action for compensatory damages against a governmental agency as against the argument of sovereign immunity.

Section 768.28’s waiver of sovereign immunity does not cover discretionary planning decisions about selecting and placing traffic control devices.

Perez v. State Dept. of Transp. · filed 1982-04-21

The DOT's alleged negligence in failing to warn does not warrant further discussion in view of the numerous decisions holding that the selection and placement of traffic control devices are discretionary governmental planning functions and are therefore exceptions to the waiver of sovereign immunity under § 768.28, Fla. Stat.

Section 768.28 does not waive immunity for planning-level decisions about road alignment, road upgrades, or installing traffic control devices.

Department of Transp. v. Neilson · filed 1982-09-14

We quash the instant decision and hold that the failure to install traffic control devices and the failure to upgrade an existing road or intersection, as well as the decision to build a road or roads with a particular alignment, are judgmental, planning-level functions and absolute immunity attaches.

Section 768.28 does not preserve governmental immunity for negligent road maintenance merely because an agency followed its maintenance schedule.

Foley v. State, Dept. of Transp. · filed 1982-11-17

We do not feel that governmental immunity can be invoked by simply showing that DOT formulated and adhered to a schedule of road maintenance at the accident site.

Section 768.28's waiver of sovereign immunity does not make the state liable in tort for an agency's exercise of police power in deciding when and what to inspect.

Neumann v. Davis Water and Waste, Inc. · filed 1983-05-13

The legislature responded by enacting section 768.28, Florida Statutes (1974 Supp.), which we originally perceived as a broad and complete waiver of sovereign immunity in Florida, except as limited by the legislature. ... The most important factor to consider is that by imposing rules and regulations and deciding when and where or what to inspect, DER is exercising the police power of the state, a purely governmental function which historically has enjoyed immunity from tort liability.

Section 768.28 does not impose tort liability for a school board’s planning level decision about where to place school bus stops.

Harrison v. Escambia County School Bd. · filed 1983-07-07

We hold that the designation of school bus stops is a planning level decision which is immune from tort liability under the doctrine of sovereign immunity and that Harrison's amended complaint failed to allege sufficiently the existence of a known trap or dangerous condition which would create an operational level duty to post warnings.

Section 768.28 preserves immunity for negligent bridge design and failure to upgrade a bridge because those are planning-level decisions.

Perez v. Department of Transp. · filed 1983-07-21

We agree with the holding of the trial court and the district court that the act of designing the bridge and the failure to upgrade and improve the bridge arise at the judgmental, planning-level of government and are immune from suit under section 768.28, Florida Statutes (1975).

Section 768.28 waives immunity for negligent failure to warn of a known dangerous railroad crossing or to maintain the crossing.

Department of Transportation v. Webb · filed 1983-09-01

The district court opinion also reflects that the failure to place warning signs at a railroad crossing which is known to be dangerous and the failure to maintain the railroad crossing are operational-level functions and constitute negligent, tortious conduct, immunity to which is waived by section 768.28, Florida Statutes (1977). This portion of the district court's holding is consistent with our opinions in Commercial Carrier, Neilson, and Ralph v. City of Daytona Beach, No. 62,094 (Fla. Feb. 17, 1983). We approve the result reached by the district court because this case was presented to the jury on the issue of the petitioner's negligent failure to maintain the railroad crossing and failure to warn motorists of a known dangerous condition.

Section 768.28 permits a tort claim against a city for property damage caused by its firefighters’ negligence at the operational level.

Palmer v. City of Daytona Beach · filed 1983-12-29

After Steinhardt, Florida waived sovereign immunity for torts committed by cities resulting from acts performed at an operational level. Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979); § 768.28, Fla.Stat. (1981). We have held that the negligent carrying out of city governmental powers and functions at that level may result in *372tort liability. ... We cannot distinguish this case from the others on the ground that the city employees here were engaged in discretionary activities.

Section 768.28 waives sovereign immunity for negligent performance of required elevator safety inspections and certifications because those activities are operational functions.

Bryan v. State, Dept. of Business Regulation · filed 1983-09-12

After thoroughly reviewing Commercial Carrier and its progeny, it is apparent to us that elevator safety inspections and certifications required by the applicable statutory provisions for the protection of elevator users cannot reasonably be held to be the kind of policy-making, planning or judgmental governmental functions which our Supreme Court says are excepted from the legislature's broad waiver of sovereign immunity mandate expressed in Section 768.28.

Section 768.28 allows a tort claim against a city when officers who know a stopped driver is intoxicated let him continue driving; that conduct is operational rather than an immune discretionary function.

Huhn v. Dixie Ins. Co. · filed 1984-05-17(1)

Here, we find that because the complaint alleged that the police officers knew Collins to be intoxicated yet failed to detain or arrest him, there was little room for discretion which would warrant a finding of immunity.

Section 768.28 permits a negligence claim against a municipality for operational building inspection activities, including reviewing plans and inspecting construction for code compliance.

Manors of Inverrary XII Condo. Ass'n v. Atreco-Fla., Inc. · filed 1983-09-28

The planning-operational dichotomy was introduced into the jurisprudence of this state in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979) and now controls the determination of which governmental functions are still protected by sovereign immunity and which are not pursuant to the waiver provisions of Section 768.28, Florida Statutes (1981). ... The examination of plans and specifications for the issuance of a building permit and on-site inspections to determine compliance with code requirements prior to issuance of the certificate of occupancy are operational activities.

Section 768.28 leaves a city immune from tort liability for discretionary decisions about allocating animal-control enforcement resources and whether to impound a dog.

Carter v. City of Stuart · filed 1985-04-04

Turning to this case, we conclude the city had no liability. The amount of resources and personnel to be committed to the enforcement of this ordinance was a policy decision of the city. ... He too made a judgmental decision on behalf of the city which should be immune.

Section 768.28 does not waive sovereign immunity for a governmental agency's failure to inspect when the alleged negligence does not arise from a direct operational act.

Caranna v. Eades · filed 1985-02-08

First, we conclude that the City was immune from liability under the doctrine of sovereign immunity established in Commercial Carrier v. Indian River County, 371 So.2d 1010 (Fla. 1979), and as applied by this court in Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), pet. for rev. denied, 441 So.2d 632 (Fla. 1983). As stated in Neumann, a failure to inspect by a governmental agency does not create a negligent act for which liability can be imposed because the liability does not arise by a "direct operational act of government or its employees."

Section 768.28 does not waive sovereign immunity for the performance of governmental inspections, which remains a discretionary governmental activity.

Johnson v. Collier County · filed 1985-02-20

There will always be certain essential activities of the government which must remain immune from tort liability. We think the level of performance of governmental inspections is one of those areas in the basic discretionary area of the government. As Judge Ott observed in Neumann, the government cannot become the insurer of those injured when its laws and regulations are broken or safety measures that it imposes are ignored. If the legislature by enactment of section 768.28 intended otherwise, it should clarify its intent.

Section 768.28 waives sovereign immunity for existing common-law torts but does not remove absolute immunity for planning-level governmental decisions.

Avallone v. BD., CTY. COM'RS, CITRUS · filed 1985-04-25

However, we find nothing in section 286.28 that overcomes or alters the absolute immunity which attaches to "planning-level" activities of government. Neilson. As does section 768.28 now, before its adoption section 286.28 merely eliminated the immunity which prevented recovery for existing common law torts committed by the government. See Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So.2d 912 (Fla. 1985). If section 768.28 does not alter this absolute immunity, neither does section 286.28.

Section 768.28 does not waive sovereign immunity for a state agency's judgmental or planning-level decisions.

Windham v. Florida Dept. of Transp. · filed 1985-09-27

The Department's failure to monitor the disposal site, on the other hand, particularly after a period of more than seventeen years from date of the improper use and disposal of the chemical, implicates the Department's judgmental or planning-level decision making, rather than its operational activities. ... Accordingly, the waiver of sovereign immunity which became the law in 1974 would not serve to render the Department liable for its failure to detect and take steps to protect appellants from this unknown danger.

Section 768.28 does not waive a municipality’s immunity from liability for adopting building and plumbing codes.

Brynnwood Condominium I Ass'n v. City of Clearwater · filed 1985-07-17

Finally, we agree with the trial court that adoption of codes and other ordinance making procedures are basic governmental policy-making processes for which a municipality is immune from liability. See Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla.1985); Commercial Carrier; Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983). Thus, contrary to Brynnwood’s argument, Clearwater’s decision to adopt plumbing and building codes allowing the use of copper pipes does not render the city liable. See § 768.28, Fla. Stat. (1983).

Section 768.28 does not waive sovereign immunity for a sheriff’s discretionary decision to pursue a lawbreaker.

Rhodes v. Lámar · filed 1986-07-03

Appellant argues that section 768.28, Florida Statutes (1985), the waiver of sovereign immunity act, makes Horne inapplicable to the facts of this case, but we do not agree. The decision to institute pursuit of a lawbreaker is a discretionary, planning level decision for which the Sheriff enjoyed sovereign immunity.

Section 768.28 permits a negligence suit against the state when an officer negligently performs an operational public safety function, such as securing an accident scene.

STATE, DEPT. OF HIGHWAY SAFETY v. Kropff · filed 1986-07-29

Utilizing the test laid out in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), we find that Trooper Carr's actions in securing the scene were operational in nature, therefore the state is not immune from suit.

Section 768.28's waiver of sovereign immunity permits liability for negligent operational acts but implicitly excludes discretionary acts.

STATE, DEPT. OF HEALTH v. Yamuni · filed 1986-10-21

Having found an underlying duty owed to Sean by HRS, we next consider whether the alleged negligent conduct was discretionary, and thus excepted by implication from the waiver of sovereign immunity in section 768.28, Florida Statutes (1979). ... Therefore, questions two and three must be answered in the negative, and the alleged negligent conduct can only be characterized as operational.

Section 768.28's limited waiver of sovereign immunity does not cover governmental planning and policy decisions about enforcing laws and protecting citizens from crime.

Parker v. Murphy · filed 1987-07-09

These cases, together with Trianon Park Condominium Assoc. v. City of Hialeah, 468 So.2d 912 (Fla. 1985), establish that governmental decisions as to the enforcement of laws and the protection of citizens from criminal offenses are generally within the category of governmental activity which involves planning and policy judgments beyond the limited waiver of sovereign immunity provided by section 768.28, Florida Statutes. We agree with the court below that appellee's activity, as alleged in the present case, is of this character and that the doctrine of sovereign immunity thus does apply to bar appellant's action.

Section 768.28 permits tort claims against governmental entities for negligent operational conduct, including negligent handling of equipment, when a duty of care applies.

Hines v. Columbia Livestock Market of Lake City, Inc. · filed 1987-12-10

As indicated in Palmer, governmental entities may be liable for such conduct, including the negligent handling of equipment, as a result of the enactment of section 768.28, Florida Statutes.

Section 768.28 permits tort liability for governmental operational functions but does not waive immunity for policy-making, planning, or judgmental functions.

Slemp v. City of North Miami · filed 1989-06-01

Decisions relating to "certain policy-making, planning or judgmental governmental functions" are not subject to the legislature's waiver of sovereign immunity as expressed in section 768.28, Florida Statutes (1985). Commercial Carrier, 371 So.2d at 1020. Government entities are not immune from liability for their torts arising from operational functions.

Section 768.28 waives sovereign immunity for tort claims based on operational acts, including assigning juveniles to locations in an HRS detention facility.

DEPT. OF HEALTH REHAB. SERV. v. Whaley · filed 1991-01-10

We hold that the assignment of juveniles to a particular room or location in an HRS detention facility is an operational function not protected by sovereign immunity and approve the district court's decision.

Section 768.28 waives sovereign immunity for tort claims against Florida and its subdivisions when a private person would be liable under Florida law.

Seguine v. City of Miami · filed 1993-10-12

Turning to the instant case, we have no trouble in concluding that the City of Miami and its police officers herein are immune from the negligence suit below based on a confluence of both the discretionary function and public duty doctrine exceptions to the waiver of sovereign tort immunity under Section 768.28, Florida Statutes (1985).

Section 768.28(1) waives sovereign immunity for a water management district’s operational-level negligence in managing a stormwater drainage system.

Southwest Florida Water Management District v. Nanz · filed 1994-09-29(1)

The complaint thus states a claim of operational-level negligence that is embraced within the section 768.28 waiver.

Section 768.28’s waiver of sovereign immunity does not permit tort damages against HRS for its discretionary decisions about allocating services to dependent and delinquent children.

Department Hrs v. Bjm · filed 1995-04-27(1)

For all of these reasons, we conclude that HRS's decisions as to the allocation of services involve an exercise of broad discretionary executive power vested in the agency by the legislature that is immune from tort liability.

Section 768.28 waives sovereign immunity for injurious operational government conduct but does not extend to basic governmental policy decisions.

White v. City of Waldo · filed 1995-08-28(1)

The statutory waiver of sovereign immunity against tort liability which the State, its agencies, or its subdivisions otherwise enjoy extends to injurious governmental activity that is tactical or "operational," but not to basic governmental policy making into which a jury cannot properly intrude.

Section 768.28 preserves sovereign immunity for discretionary policy decisions but waives it for operational negligence where a common law duty of care exists.

Lee v. DHRS · filed 1997-06-19

Under section 768.28, Florida Statutes (1995), discretionary policy-making or planning activities of governmental entities remain immune from tort liability. However, immunity from tort liability is waived for negligent activities that are operational and for which a common law duty of care exists.

Section 768.28 permits negligence actions against governmental entities for operational functions, while sovereign immunity protects planning functions.

Romano v. Palm Beach County · filed 1998-07-22

The doctrine of sovereign immunity bars negligence actions against governmental entities with respect to "planning" functions, but not "operational" functions. See § 768.28, Fla. Stat. (1997).

Section 768.28 permits a tort suit against a sheriff for deputies’ operational acts during a roadside detention when those acts breach a duty of care; sovereign immunity protects discretionary policy decisions.

Henderson v. Bowden · filed 1999-07-08(1)

Following the Kaisner line of cases, we conclude that sovereign immunity does not bar the instant suit because the deputies' actions were operational in nature as opposed to the discretionary, policy-making functions in which courts should not become involved under the separation-of-powers doctrine.

Section 768.28 permits a tort claim for operational conduct implementing an arrest, while the discretionary decision to make the arrest remains immune.

Sams v. Oelrich · filed 1998-04-22(1)

Although the decision to make an arrest is a discretionary or judgmental power *1048 that is immune from suit, see Everton, 468 So.2d at 937-938, sovereign immunity does not shield an operational act, i.e., an act taken toward implementing the discretionary or planning level decision. ... Instead, we view the deputy's post-arrest handling of the escapee as involving operational activities which created a substantial zone of risk.

Section 768.28 does not waive immunity for discretionary planning and design of capital improvements, but a governmental entity that creates a known, nonobvious danger must correct it or warn those at risk.

Krol v. City of Orlando · filed 2001-02-23

One principle provides that planning and designing capital improvements are discretionary functions of government which are immune from tort liability and do not fall within the ambit of the waiver provisions of section 768.28, Florida Statutes (Supp.1996). ... This exception provides that once a governmental entity creates a known dangerous condition which may not be readily apparent to those who could be injured by it, then the government must take steps to correct the dangerous condition or warn those who may be injured by it. ... We conclude that this evidence raises a disputed issue of material fact, namely whether application of the exception to the rule of immunity relating to planning and designing capital improvements is appropriate in the instant case.

Section 768.28 does not provide sovereign immunity for a police officer's operational conduct while pursuing a suspect on foot through a crowd.

City of Miami v. De La Cruz · filed 2001-03-14

We believe that Officer Jimenez's actions of chasing a suspect through a crowd of people, on foot, were operational in nature and not immune from suit.

Section 768.28(5)'s waiver does not cover a school board's discretionary, planning-level decision about when to open and close schools.

Orlando v. Broward County · filed 2005-12-21(5)

Section 768.28(5) provides that the "state and its agencies and subdivisions [are] liable for tort claims in the same manner and to the same extent as a private individual under like circumstances." ... Even though the statute creates a limited waiver of sovereign immunity, certain discretionary, planning-level governmental functions remain immune from tort liability. ... Setting the time when a given school opens or closes is a discretionary, planning-level function of the School Board, not subject to the waiver of sovereign immunity.

Section 768.28 permits a negligent defamation claim against a state university when the alleged conduct is operational rather than a basic policy decision.

Rudloe v. Karl · filed 2005-04-07

We find no merit in FSU's highly problematic assertion that it enjoys blanket immunity for anything editors of its alumni publications say, write or allow to be published about FSU alumni. After all, our supreme court has said, "[s]ection 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis." Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022 (Fla. 1979). The negligent fact checking alleged in the present case was "tactical or `operational,'" and did not involve law enforcement or "basic governmental policy making," White v. City of Waldo, 659 So.2d 707, 711 (Fla. 1st DCA 1995), of the kind that occurs in "the discretionary planning or judgment phase." City of Hialeah, 468 So.2d at 919.

Section 768.28(1) waives sovereign immunity where a private person would be liable, but discretionary governmental functions remain immune; negligent DNA testing and reporting can be operational acts.

Mosby v. Harrell · filed 2005-06-23(1)

The state and its subsidiaries are generally immune from tort liability, but pursuant to authority contained in article X, section 13, of the Florida Constitution, this general tort immunity has been waived by section 768.28(1), Florida Statutes, "under circumstances in which the state or agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of the state." Although this statutory language evinces a legislative intent to waive sovereign immunity on a broad basis, constitutional separation-of-powers considerations require that certain discretionary or planning level governmental functions remain immune from tort liability.

Section 768.28’s waiver does not cover a claim based on an officer’s failure to detect or deter crime when the officer owed a duty only to the public at large.

Miami-Dade County v. Fente · filed 2007-02-07

Rather, he allegedly failed in his duty to detect and to deter criminal activity, a duty which he owed to the public at large and to no single individual. ... Because the public duty exception to section 768.28 applies to this case, the motion to dismiss should have been granted.

Section 768.28 does not waive immunity for a county’s discretionary decision not to assign law enforcement or security officers to patrol a bus stop.

Miami-Dade County v. Miller · filed 2009-09-30

We conclude that the County’s decision not to assign law enforcement or security officers to patrol the area of the bus stop is immune from tort liability under the discretionary function exception.

Section 768.28’s waiver of sovereign immunity permits tort claims based on operational government conduct, including deputies’ affirmative actions while conducting a 911 safety check.

Wallace v. Dean · filed 2009-01-29(1), (5)

Under these circumstances, we further hold that the affirmative actions of the deputies involved in this case were operational in nature; therefore, sovereign immunity does not bar the plaintiff-petitioner’s negligence-based wrongful-death claim.

Section 768.28 does not shield a city from liability for negligent maintenance of existing traffic control devices or negligent performance of its operational duty to warn of known hazards.

Marion v. City of Boca Raton · filed 2010-10-20

The City is not immune for the negligent performance of these operational duties.

Section 768.28’s waiver of sovereign immunity does not extend to discretionary police decisions made in a pressing emergency.

Miami-Dade County v. Rodriguez · filed 2011-08-31

Recognizing the importance of this fundamentally prescribed structure at every level of government, our high court wisely concluded in the seminal case construing the scope of the waiver of immunity from suit in section 768.28 that certain functions of the legislative and executive branches of our local governments may not be made subject to scrutiny by a judge or jury as to the wisdom of performance. ... Courts rightfully afford special deference to police officers’ conduct in pressing emergencies, such as the one presented to us. ... For the foregoing reasons, we exercise our jurisdiction to preclude prosecution as the sovereign remains immune from this suit and we grant the petition.

Section 768.28’s waiver of sovereign immunity is not defeated as a matter of law merely because police were responding to an emergency when the alleged negligence occurred.

Rodriguez v. Miami-Dade County · filed 2013-06-27

Thus, we agree that the police emergency exception does not apply as a matter of law to immunize the County from suit in this case.

Section 768.28 preserves immunity for planning level decisions about the design of a governmental stormwater management system.

Barnes v. District Board of Trustees · filed 2014-08-12

Much of what the Barneses claim is couched in terms of a negligent failure to design or a failure to give adequate consideration to alternative designs that might have warded off the effects of flooding from the neighboring association’s runoff. Immunity for these planning level activities exists under section 768.28 as well as the broader immunity provided by section 373.443.

Section 768.28’s waiver permits suit for negligent operational maintenance of intersection vegetation, while planning-level design and planting remain immune.

Piedra v. City of North Bay Village · filed 2016-05-04

Should there be a duty, then the inquiry is whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes. ... The record supports the conclusion that the City’s actions in designing and planting the bulb out areas was a planning level function and therefore immune from suit. Maintenance of the area, however, is an operational, not a planning level function. The City would not be immune from suit for its alleged negligent actions or omissions in maintaining the bulb-out areas.

Section 768.28 waives the State’s tort immunity only when it owes the claimant an underlying duty of care and the challenged action is not a discretionary function inherent in governing.

Florida Fish and Wildlife Conservation Comm. v. William Daws, Jr. and Ouida Gershon · filed 2018-04-10(1)

Pursuant to its enactment of section 768.28, Florida Statutes, the Legislature has explicitly waived the State’s immunity from suit for liability in tort for damages. But this statutory waiver is strictly limited to circumstances where the State owes the plaintiff an underlying common law or statutory duty of care and where the challenged government actions are not discretionary and inherent in the act of governing.

Section 768.28’s waiver of sovereign immunity does not extend to discretionary governmental functions, including the denial of a land use plan amendment.

MARGATE COMMUNITY REDEVELOPMENT AGENCY and CITY OF MARGATE v. NEW URBAN COMMUNITIES, LLC · filed 2021-04-28

We agree with the Appellants that the two tort claims at issue are barred by sovereign immunity because they are premised on the denial of a land use plan amendment, which is a discretionary governmental function.

Section 768.28 partially waives sovereign immunity for tort claims involving governmental operational functions, but discretionary planning-level functions remain immune.

BROWARD COUNTY v. MANARITE · filed 2022-02-02

Section 768.28, Florida Statutes (2018), partially waives a governmental entity’s sovereign immunity for tort actions. However, as our supreme court has held, this limited waiver applies only to the governmental entity’s operational functions, not the governmental entity’s discretionary planning-level functions: ... Here, the plaintiff’s amended complaint implicated only the county’s discretionary planning-level functions, and therefore the amended complaint should not have survived the county’s motion to dismiss.

Section 768.28(1) does not waive sovereign immunity for negligent training claims based on discretionary decisions about when officers must be trained; failure to follow an established training schedule may be operational.

Nocco, Sheriff of Pasco County v. Wilcox · filed 2025-06-06(1)

Determinations regarding when officers need to complete training is an exercise of governmental discretion regarding fundamental questions of policy and planning because that flows from decisions regarding how to train. Therefore, such a claim would be barred by sovereign immunity. However, where there is already an established policy regarding the timing of training and an officer failed to complete training according to that policy, such a negligent training claim would challenge an operational function.

Section 768.28’s tort waiver does not cover discretionary planning-level decisions to classify and assign inmates within the prison system.

Florida Department of Corrections v. Campbell · filed 2025-07-30

We conclude that DOC’s classification and assignment of Campbell within the prison system were discretionary, planning-level decisions for which DOC had sovereign immunity.

Section 768.28 broadly waives sovereign immunity, but government entities remain immune for policy-making, planning, or judgmental governmental functions.

Sheriff of Broward County v. Estate of Alyssa Alhadeff · filed 2026-05-13

Despite the broad waiver of sovereign immunity in section 768.28, Florida Statutes (2019), government entities remain immune for certain policy-making, planning, or judgmental governmental functions.

Section 768.28 does not shield a sheriff from a tort claim based on deputies’ operational acts of enabling and directing an intoxicated motorist to drive.

Smith, Etc. v. Lee · filed 2026-05-20(1)

Therefore, we hold that the deputies’ challenged conduct was an operational function for which Sheriff Smith does not have sovereign immunity.

Section 768.28 leaves discretionary traffic planning immune, but that immunity does not cover a failure to perform a statutory duty to install and maintain traffic safety devices.

AL LEWIS, ETC. v. Metropolitan Dade Cty. · filed 1979-10-23

The appellees argue, and correctly so, that the fixing of particular traffic zones, installation of traffic signals and pedestrial control devices are discretionarily policy matters, planning or judgment governmental features, and as such cannot be the subject of traditional tort liability; and therefore that immunity therefor continues in spite of Section 768.28, Florida Statutes (1975). ... That basis for continued immunity of a county or municipality for such matters does not prevail in face of a statutory imposition of a duty on such governmental agencies to establish and maintain such traffic regulation facilities.

Section 768.28 waives immunity for existing common law torts but leaves absolute immunity for planning-level government activities intact.

Avallone v. Board of County Commissioners of Citrus County · filed 1985-04-25

As does section 768.28 now, before its adoption section 286.28 merely eliminated the immunity which prevented recovery for existing common law torts committed by the government. ... If section 768.28 does not alter this absolute immunity, neither does section 286.28.

Section 768.28 preserves immunity for planning-level bridge design decisions without requiring proof that the design met prevailing standards.

Jefcoat v. State, Department of Transportation · filed 1991-08-12

We find no basis in that argument for reversal since the Perez and Clarke decisions set forth no requirement that immunity from suit under section 768.-28, Florida Statutes be based upon a showing that the bridge design, adopted by the Department at the judgmental planning-level, complied with any prevailing standards of the day. Those cases merely declare that decisions regarding the design of a bridge are judgmental, planning-level governmental decisions and thereby are immune from suit under section 768.28.

Section 768.28(15) bars claims against governmental entities arising from an unlawful assembly when the claimant unlawfully participated in it.

Owaki v. City of Miami · filed 2007-06-21(15)

The uncontested testimony and video evidence show that the Plaintiff was participating in an unlawful demonstration at the time Plaintiff was struck by the police officer and arrested. The uncontradicted testimony of Major Burden, Officer Williams, Chief Fernandez, and the other deposed officers demonstrates that Plaintiff was participating in an unlawful assembly once the officers began to instruct the protestors to disperse over their megaphones. Plaintiffs claim under § 768.28 is therefore barred.

Section 768.28(5) treats claims arising from a continuing nuisance as one occurrence for the $100,000 payment limit; the nuisance cannot be divided into time segments to permit multiple recoveries.

Rumbough v. City of Tampa · filed 1981-09-23(5)

By its terms, section 768.28(5) limits the payment of all claims or judgments "arising out of the same incident or occurrence" to $100,000. ... In any event, having concluded the statute waives sovereign immunity with respect to torts which constitute a nuisance, we cannot see how such torts could be divided into time segments so as to permit multiple recoveries simply because nuisances are usually continuing in nature.

Section 768.28(6)(a)’s presuit notice requirement does not apply to claims under the Florida Educational Equity Act.

Methelus v. School Board of Collier County · filed 2017-03-17(6)(a)

Plaintiffs’ claim under the FEEA is not subject to § 768.28(6)(a)’s- pre-suit notice requirement.

Section 768.28(6) requires a claimant to present a tort claim in writing within three years after it accrues, subject to the statute's other notice requirements.

Scavella v. Fernandez · filed 1979-05-29(6)

Since we hold that Section 2-2 is invalid as in conflict with the three year notice period provided by Section 768.28(6), Florida Statutes (1977), the judgment of dismissal under review is reversed.

Section 768.28(6) requires a written claim to be presented to the Department of Insurance and the appropriate agency before suing the state, but does not impose that requirement on claims against officials individually.

West v. Wainwright · filed 1980-03-20(6)

Insofar as appellant's claim was against the state, the order requiring compliance with Section 768.28(6) is correct, and the dismissal without prejudice was appropriate. But insofar as appellant's complaint alleged malicious mistreatment "as a program of deliberate abuse designed to threaten the life of the Plaintiff or to drive him to distress," the complaint stated a cause of action against the appellees individually, for which Section 768.28(6) does not require a written claim upon the state or its agencies.

Section 768.28(6) makes written notice a mandatory condition precedent to suit, and once the notice period expires the court cannot abate the proceeding to allow compliance.

Dukanauskas v. Metropolitan Dade County · filed 1979-12-18(6)

Since the time for the performance of the mandatory conditions precedent has elapsed, this court is without authority to order that the proceeding be abated.

Section 768.28(6) does not require separate notices for separate claims against the same agency if the notice makes both claims apparent and the agency is not prejudiced.

County of Sarasota v. Wall · filed 1981-08-24(6)

While case law has established that court proceedings on separate claims must be separate, we see no reason to require separate notices of claim to the same state agency as long as the fact that more than one claim is being made is apparent on the face of the notice and the agency is not prejudiced.

Section 768.28(6) requires written notice that sufficiently identifies the occurrence for agency investigation and a written denial, but prescribes no particular form for either.

Whitney v. Marion County Hosp. Dist. · filed 1982-07-07(6)

Since section 768.28(6) does not specify the form or manner of submitting the claim, except that it be in writing, it follows that any manner of submitting a written notice of the claim to the agency involved that sufficiently describes or identifies the occurrence so that the agency may investigate it, satisfies the statute. Similarly, the written denial of the claim in the mediation proceeding satisfies that requirement of the statute, since the statute mandates no particular form for denial except that it be in writing.

Section 768.28(6) requires timely notice to the Department of Insurance; a complaint cannot be saved by amendment when that notice was never given.

Levine v. Dade County School Board · filed 1982-09-28(6)

We are unable to reverse the trial court’s dismissal, however, because the supreme court, in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1023-24 (Fla.1979), ruled that notice to the Department of Insurance must be alleged in the complaint. In Commercial Carrier, the court remanded for amendment; that procedure would afford no relief here because the Department of Insurance did not receive timely notice.

Section 768.28(6) requires written notice to the Department of Insurance within three years before suit against a state agency or subdivision, including a school district, except for a municipality.

Levine v. Dade County School Bd. · filed 1983-12-08(6)

Section 768.28(6) clearly requires written notice to the department within three years of the accrual of the claim before suit may be filed against any state agency or subdivision except a municipality.

Section 768.28(6) requires a claimant to submit a written claim within three years to the government defendant and, unless the defendant is a municipality, to the Department of Insurance.

Mrowczynski v. Vizenthal · filed 1984-02-29(6)

In order to comply with the foregoing section, a plaintiff must, within three years after a claim accrues, submit his claim in writing to the potential defendant and, unless that potential defendant is a municipality, to the Department of Insurance.

Timely notice under section 768.28(6) remains effective even if it was given after a prematurely filed complaint was dismissed; a complaint may proceed once the notice conditions are met.

Askew v. County of Volusia · filed 1984-04-05(6)

In the instant case, the notice was properly given within the three-year time limit. The court should have either allowed an amendment of the previously-filed complaint to properly allege notice,[3] or certainly allowed the newly-filed complaint to stand, since all the conditions precedent had then occurred and were properly alleged. The prior dismissal of the complaints does not in any way negate the previously given timely notice, and it was effective.

Section 768.28(6) requires written notice to a municipality before suing it, but the notice requirement does not apply to actions against individuals.

Hucker v. City of Oakland Park · filed 1983-02-16(6)

We answer in the negative because that section only requires written notice of a claim to be given to a municipality as a prerequisite to maintaining an action against the municipality and we do not find it applicable to actions against individuals.

Section 768.28(6) requires a political subdivision to comply with its notice provision even if the subdivision carries liability insurance.

Burkett v. Calhoun County · filed 1983-11-08(6)

Therefore, we believe that it was the intent of the legislature to require compliance with the notice provision of Section 768.28(6) whether or not the political subdivision elected to carry liability insurance.

Section 768.28(6) applies to tort claims, not inverse condemnation claims.

Young v. Palm Beach County · filed 1984-01-11(6)

The cause of action alleged here does not sound in tort, a sine qua non for application of Section 768.28(6), Florida Statutes (1981).

A claimant adequately pleads compliance with the notice requirement by alleging that proper notices were given; defendants must specifically deny that the required notices were given.

Ashley v. Lámar · filed 1985-05-02(6)(a)

Looking solely to the allegations of the complaint, we think Ashley adequately pleaded that she gave proper notice. Fla.R.Civ.P. 1.120(c). This then shifted the burden to the appellees to deny with specificity and particularity that the required notices were given and to properly present this issue to the trial court in the context of a summary judgment motion, Fla.R.Civ.P. 1.510, or motion for judgment on the pleadings, Fla.R.Civ.P. 1.140(c).

Section 768.28(6) does not require dismissal with prejudice when a claimant gives notice within three years but after filing suit, or fails to plead compliance with the notice requirement.

Lee v. South Broward Hosp. Dist. · filed 1985-07-09(6)

Though the circumstances attendant in Commercial Carrier are not on all fours with those of the case now before us, we see no reason why the same principle should not apply here as to both the failure to plead the notice requirement, and the failure to give the notice, prior to filing suit. ... Here, notice was given within the three year period, even though it was given after filing suit. We, therefore, deem the trial court to have been in error in dismissing the pertinent amended complaint with prejudice and we remand this cause to the trial court for further proceedings.

A plaintiff may correct on remand a failure to attach to the complaint a copy of the notice of claim filed with the city.

Kulpinski v. City of Tarpon Springs · filed 1985-08-09(6)(a)

The city also points out that appellant failed to attach to her complaint a copy of the notice of claim filed with the city as required by section 768.28(6)(a), Florida Statutes (1983). This oversight by appellant can be corrected on remand.

Section 768.28(6) requires a claimant to prove compliance with its notice requirement at trial; failure to do so requires judgment on the merits for the defendant.

Hardcastle v. Mohr · filed 1986-02-28(6)

Since Mohr did not establish a prima facie case that he had complied with the notice requirement, it was incumbent on the trial judge to render judgment on the merits for the defendant sheriff.

Section 768.28(6)'s notice requirement may be waived, and a genuine factual dispute about waiver precludes summary judgment.

Meli v. Dade County School Bd. · filed 1986-05-06(6)

Plaintiff, a mother suing on behalf of her minor child, contends in this appeal that (1) the notice which must be given a sovereign, pursuant to section 768.28(6), Florida Statutes (1985), before the sovereign can be sued in tort is waivable, and (2) a genuine issue of fact was presented as to whether the statutory notice was waived precluding summary judgment. We agree with both contentions and reverse the judgment.

Section 768.28(6)'s Department of Insurance notice requirement can be waived because it is neither jurisdictional nor an essential element of the cause of action.

McSwain v. Dussia · filed 1986-12-08(6)

Since the notice requirement in section 768.28(6) is neither jurisdictional nor an essential element of the cause of action, failure to give the requisite notice may be waived by the hospital authority.

Section 768.28(6)'s notice requirement does not affect subject matter jurisdiction, and a defendant may waive a lack-of-notice defense by failing to raise it timely.

Florida Medical Center v. DEPT. OF HRS · filed 1987-08-07(6)

We agree with HRS that the notice provisions of section 284.30 are similar to those provided in section 768.28(6)(a), in that both require presentation of the particular claim in writing to the Department of Insurance. We do not agree, however, that the failure of a party to comply with either of the two statutes divests a court of subject matter jurisdiction, or that the defending party's failure to assert timely the defense of lack of notice may not be waived.

Section 768.28(6) requires notice to the Department of Insurance; the defendant agency cannot waive that requirement through its own conduct.

Menendez v. N. Broward Hosp. Dist. · filed 1987-12-09(6)

However, we are unable to find any authority for the agency to waive notice to the Department as mandated by the legislature. Accordingly, we feel compelled to affirm the order of the trial court dismissing appellants' amended complaint.

Section 768.28(6)'s written notice requirement is satisfied when the Department of Insurance receives an amended complaint within the three-year period.

STATE DEPT. OF TRANSP. v. Alvarez · filed 1986-07-08(6)

We affirm the judgment below upon the holdings that (a) since the Department of Insurance in fact received written notice of the instant claim by service of the amended complaint upon it well within the three-year period provided by section 768.28(6), Florida Statutes (1983), the claim that the action is barred because the notice was not previously given is not well-taken, Lee v. South Broward Hospital District, 473 So.2d 1322 (Fla. 4th DCA 1985); see City of Pembroke Pines v. Atlas, 474 So.2d 237 (Fla. 4th DCA 1985), pet. for review denied, 450 So.2d 485 (Fla. 1984), and (b) any error in excluding an expert witness for noncompliance with pre-trial discovery, see Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981), was rendered harmless by the fact that the salient portions of the expert's testimony were otherwise brought to the jury's attention.

Section 768.28(6)(a)'s notice requirement can be satisfied when someone other than the claimant sends the claim to the Department of Insurance within three years and the department denies liability.

Franklin v. Department of Health · filed 1986-07-24(6)(a)

In Levine, no notice of the claim was sent to the Department of Insurance, whereas in this case the notice of the claim was sent to the Department of Insurance within three years, but not by the plaintiff. ... In this case, since the record indicates that the Department of Insurance was notified of the claim within three years of plaintiff's injury and that the department denied liability; therefore, the plaintiff complied with the notice provisions.

Section 768.28(6) requires written notice before a claim against the State or its subdivisions, but does not require it for an individual claim alleging malicious intent or gross negligence.

Hansen v. State · filed 1987-03-10(6)

Such notice is a condition precedent to the maintenance of a cause of action against a State agency or subdivision, and insofar as appellant's claim was against the State and Morrison, in his official capacity, the order of dismissal was correct. However, insofar as the complaint alleged "malicious intent" and "gross negligence," the complaint stated a cause of action against Cummings, individually, for which section 768.28(6) does not require a written claim.

Section 768.28(6) bars the Division of Risk Management from denying receipt of a claim after the limitations period expires when it previously acknowledged that an accident report of the claim was filed within that period.

Martin v. Monroe County · filed 1987-12-22(6)

We hold that when the Department of Insurance Division of Risk Management acknowledges that within the statute of limitations, an accident report of a claim was filed pursuant to Section 768.28(6), Florida Statutes (1979), it is thereafter estopped after the expiration of the statute of limitations to deny receipt of the claim.

Section 768.28(6) requires written notice to the agency being sued; notice to a sheriff that does not identify the jail board as a potential defendant does not suffice as notice to the board.

Ryan v. Heinrich · filed 1987-01-28(6)

There is no doubt that appellant complied with section 768.28(6) with respect to Heinrich, as sheriff, by mailing a written notice of claim to him and to the Department of Insurance. However, this claim made no reference to Heinrich in his capacity as director of the HBCJ, and there was nothing in the text of the claim to suggest that the board was a potential defendant. The written notice did not suffice to make a claim against the board.

Section 768.28(6)(a) does not require separate notice of a contribution crossclaim against a government defendant when the original plaintiff gave notice of the underlying claim against that defendant.

Orange County v. Gipson · filed 1989-03-02(6)(a)

In sum, we conclude that section 768.28(6)(a) does not require that the City provide notice of its contribution crossclaim to the State Department of Insurance when the County was already a party defendant, and notice of the claim against the County was given to the Department of Insurance by the original plaintiff.

Section 768.28(6)(a) does not require separate notice of a contribution crossclaim when the original tort claim was properly noticed and the governmental entity was already a party.

Orange County v. Gipson · filed 1989-09-07(6)(a)

We agree that where, as in this case, a crossclaim for contribution is "part and parcel," id., of the original action against a state agency notice of filing the crossclaim is not necessary.

Section 768.28(6)(a) requires a spouse bringing a derivative loss-of-consortium claim to give separate notice of that claim.

Metropolitan Dade County v. Reyes · filed 1996-12-19(6)(a)

We must address whether a spouse's derivative loss-of-consortium claim requires a separate or distinct notice pursuant to the provisions of section 768.28(6)(a), Florida Statutes (1989). We find that a separate or distinct notice is required.

A spouse seeking loss of consortium damages from a county must give notice of that claim under section 768.28 before suing.

Calero v. Metropolitan Dade County · filed 2001-05-09(6)

The Florida Supreme Court held in Metropolitan Dade County v. Reyes, 688 So.2d 311 (Fla.1996), that a spouse who wishes to bring suit against the County for loss of consortium must give statutory notice under section 768.28, Florida Statutes. 688 So.2d at 312-13. The trial court correctly so ruled.

Section 768.28(6)(a) requires notice for a money damages claim against a government entity.

Pondella Hall for Hire, Inc. v. City of St. Cloud · filed 2003-01-24(6)(a)

In respect to the claim for money damage, Pondella is confronted with the doctrine of sovereign immunity, which requires notice pursuant to section 768.28(6)(a), Florida Statutes. No such notice was given.

Section 768.28 does not require notice for compensatory remedies collateral to a sheriff’s forfeiture action.

Cobb v. Langworthy · filed 2005-08-19(6)(b)

In this case, Langworthy did not give the notice provided for in section 768.28(6)(b). We agree with Langworthy that when an agency brings a forfeiture action against an individual's property in bad faith[6] or simply retains the property and thereafter is denied forfeiture, the compensatory remedies built into those statutes are collateral to the actions of the Sheriff, and no notice pursuant to section 768.28 is required.

Section 768.28(6)'s presuit notice requirements do not apply to claims under the Florida Civil Rights Act of 1992.

Maggio v. Fla. Dept. of Labor & Emp. SEC. · filed 2005-03-24(6)

We answer the rephrased question in the negative and hold that claims filed pursuant to the Florida Civil Rights Act of 1992 are not subject to the presuit notice requirements of section 768.28(6).

Section 768.28(6)(a)'s presuit notice requirements do not bar claims under the Florida Civil Rights Act.

Maggio v. Department of Labor and Employment Security · filed 2005-08-10(6)(a)

Finally, pursuant to Maggio v. Department of Labor & Employment Security, 899 So.2d 1074 (Fla.2005), we also reverse that portion of the trial court's order that dismissed Maggio's claims for failing to comply with the presuit notice requirements of section 768.28(6)(a).

Section 768.28(6)(a)'s notice requirement applies to claims against the state or its agencies or subdivisions, not to claims against officers sued individually.

Medberry v. McCallister · filed 2006-09-18(6)(a)

Section 768.28(6)(a), Florida Statutes (2003), expressly relates only to "[a]n action . . . on a claim against the state or one of its agencies or subdivisions. . . ." In contrast, Medberry sued Appellees in their individual capacity.

Section 768.28(6)(a) requires written notice to the Department within three years for a tort claim against an autonomous municipal agency such as the OUC; the municipality exception does not apply.

Lederer v. ORLANDO UTILITIES COM'N · filed 2008-04-18(6)(a)

We simply need to determine that it is not a municipality or municipal department. Consequently, we agree with McSwain, and hold that Ms. Lederer was required to provide notice of her claim to the Department within three years after the accident occurred.

Section 768.28 requires a claimant to allege compliance with its presuit notice condition. Failure to do so warrants dismissal with leave to amend.

Scullock v. Gee · filed 2014-03-12(6)(b)

This requirement is a condition precedent, § 768.28(6)(b); a claimant must perform it in order to bring suit, and this compliance must be alleged in the complaint. ... Sculloek did not allege compliance with this condition precedent in his complaint. While this properly would subject his suit to dismissal with leave to amend, the circuit court dismissed it with prejudice. This was error.

Section 768.28(6) requires presuit notice sufficient to inform the agency and the Department of Financial Services of the accident, its time and location, the injuries, and the claim.

School Board of Broward County v. City of Coral Springs · filed 2016-03-02(6)

We reject the School Board’s challenge to the sufficiency of the notice the City provided pursuant to section 768.28(6), Florida Statutes (2011). ... The trial court did not err in concluding that the City provided sufficient information to the School Board and the Florida Department of Financial Services to put them on notice of the accident, its time, location, the injuries suffered and that a claim was being made.

Section 768.28(6)(a)’s notice requirement applies to a proposed amended negligence claim, making the amendment futile when the claim has the same notice defect as the original.

Beanblossom v. Bay District Schools, Bay County, Florida · filed 2019-01-14(6)(a)

She asserted a new theory of negligence against Bay District Schools, but it suffers the same notice defect as her prior claim.

Section 768.28(6)(a) treats a charter school as a state agency rather than a county agency for presuit notice purposes.

Efrain Soto, in care of Michael Soto v. Franklin Academy Foundation, Inc. · filed 2024-05-08(6)(a)

As a matter of first impression, we hold a charter school is a “state” agency, not a “county” agency, as those terms are used in section 768.28(6)(a).

Section 768.28(6)(a) requires a claimant to give notice of that claimant’s own claim; notice from a different claimant about different claims does not suffice.

Thornton v. Chronister · filed 2018-04-10(6)(a)

Section 768.28(6)(a) requires that "the claimant" must present his or her claim to the appropriate state agency. Thus, Thornton was required to present her claim to the State Fair Authority. She cannot piggy-back on the timely notice sent by a different claimant regarding different claims.

Section 768.28(6)(a)’s three-year notice deadline can be satisfied when written notices are mailed before the deadline but received by the agencies one day later.

Davis v. Bradshaw · filed 2020-06-29(6)(a)

The Court concludes, however, that Davis presented timely notice in this case. A conclusion that a defendant must receive a § 768.28(6)(a) notice within three years could lead to the dismissal of a claim due to factors beyond a plaintiff’s control if, for example, a defendant failed or refused to pick up mail, if something were lost in the mail, or if mail delivery were suspended for some reason. Such a dismissal would be absurd.

Section 768.28(6)(a) requires written notice of a tort claim within three years; complaints that do not demand compensation do not satisfy that requirement.

Turner v. Homestead Police Department · filed 2020-09-18(6)(a)

Because Turner did not comply with section 768.28(6)(a), and the three-year window to give notice has closed, the city was entitled to sovereign immunity on his state tort claims.

Section 768.28(6)'s three-year period governs contribution claims against the state and begins when judgment is entered against the claimant or the claimant pays the underlying claim, whichever occurs first.

Showell Industries, Inc. v. Holmes County · filed 1982-01-14(6)

We hold therefore that the statute of limitations did not begin running against appellants' claim for contribution until the date a judgment was entered against Showell or until the date Showell paid Mrs. Ellenburg's claim for damages, whichever was earlier. ... Regarding the appropriate statute of limitation for Showell's claim for contribution, we hold that the three-year statutory period allowed in § 768.28(6), Florida Statutes (1975), for claims against the State controls over the one-year statutory period allowed in the Uniform Contribution Among Tortfeasors Act, § 768.31(4)(c), Florida Statutes (1978).

Section 768.28(6) requires a tort action against the state to be initiated within three years after the claim arises.

Bishop v. State, Division of Retirement · filed 1982-03-22(6)

Without deciding whether such an action would be appropriate, we observe that one must initiate a tort action against the state within three years after the claim arises. § 768.28(6), Fla. Stat. ... Since all the facts known now were evident at that time, the statute of limitations provided by Section 768.28(6) ran several years ago.

Section 768.28(6) requires a claimant seeking tort damages from a county to submit a written claim within three years; that requirement is a mandatory condition of suit.

O'Donnell v. Broward County · filed 1982-07-21(6)

He had three years within which to transmit his claim for damages in writing pursuant to section 768.28(6). Because the time for performance of the mandatory condition has elapsed, we have no choice but to affirm.

Section 768.28(6) requires written notice of a claim against a municipality within three years.

Goldberg v. Bekins Moving & Storage Co. · filed 1982-12-14(6)

Section 768.28(6), Florida Statutes (1981), establishes a three-year limitations period for written notice of claims against a municipality.

Section 768.28(6) requires a spouse with a separate loss-of-consortium claim to give notice of that claim; the injured spouse's notice does not satisfy the requirement.

Orange County v. Piper · filed 1988-04-14(6)

Compliance with 768.28(6) is clearly a condition precedent to maintaining a suit. ... Therefore, the filing of the required notice by William Piper did not serve as the required notice for Kathryn, nor did it excuse the necessity for her filing a notice of her loss of consortium claim.

An insurer’s notice of its subrogated claim against the DOT does not satisfy the insured claimants’ notice requirement under section 768.28(6).

Lecuyer v. State, Department of Transportation · filed 1989-01-11(6)

The trial court dealt with the issue of whether Nationwide’s notice to the DOT was sufficient to constitute appellants’ compliance with section 768.28(6), Florida Statutes, a condition precedent to appellants bringing suit against the DOT. The trial court held it was insufficient and dismissed the action with prejudice. We agree.

Section 768.28(6)(a) does not prescribe a format for written notice; a notice identifying the claimant and accident can suffice even if the claimant’s name is omitted from the body.

Franklin v. Palm Beach County · filed 1988-11-30(6)(a)

The notice involved here advises the agencies that the subject matter at hand involves Charles Clowdus (the passenger) and Michael Franklin. The notice then describes the accident location and date and informs them that the writer represents Charles Clowdus for injuries sustained in the accident. The failure to include Franklin's name at that point was an oversight. However, the purpose of the notice had been fulfilled. The agencies were on notice of an accident, its time and location and that injuries were suffered and a claim was being made. Thus, no prejudice could be asserted from the oversight regarding Franklin.

Section 768.28(6) requires timely written notice to the appropriate agency and the Department of Insurance before maintaining a tort action against the state or its agencies.

Hamide v. STATE, DEPT. OF CORRECTIONS · filed 1989-09-13(6)

Appellant in this case acknowledges that his initial complaint is deficient for failure to allege compliance with the section 768.28 notice requirements. However, the record demonstrates that the privilege to amend has not been abused, and also there exists the possibility that appellant will be able to allege compliance with section 768.28. In these circumstances, dismissal with prejudice was improper.

Section 768.28(6) requires sufficiently detailed notice to the Department of Insurance, and section 768.28(7) permits waiver of its service requirement when the defense is not timely raised.

Metropolitan Dade County v. Coats · filed 1990-02-05(6), (7)

As long as the notice describes the occurrence with sufficient detail to enable the Department of Insurance to investigate, it fulfills the statutory requirement. ... The letter satisfied the notice requirements of section 768.28(6), Florida Statutes (1983). ... By neglecting to assert its defense by motion or answer, Metro Dade waived its right to advance that defense.

Section 768.28(6) requires notice before filing a tort claim against the state, but the notice requirements are not jurisdictional.

Drax International Ltd. v. Division of Administration, State Department of Transportation · filed 1991-01-04(6)

The notice requirements of the statute are not jurisdictional, Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979); McSwain v. Dussia, 499 So.2d 868, 870 (Fla. 1st DCA 1987); City of Pembroke Pines v. Atlas, 474 So.2d 237 (Fla. 4th DCA 1985), rev. denied, 486 So.2d 595 (Fla.1986).

Section 768.28(6) requires notice identifying each claimant’s tort claim, including a spouse’s loss of consortium claim.

Scarlett v. Public Health Trust · filed 1991-07-23(6)

The notice that the Scarletts' attorney claims to have mailed made no mention of a husband or his claim of loss of consortium as required by section 768.28(6).

Section 768.28(6) requires claimants to give written notice to both the Department of Insurance and the affected state agency within three years before suing.

Hamide v. State, Department of Corrections · filed 1991-08-07(6)

Thus, section 768.28(6) was not complied with in this case where notice was forwarded to the Department of Corrections by a third party rather than directly by the claimant.

Section 768.28(6) requires written notice of a tort claim to the agency and, generally, the Department of Insurance within three years before suit may proceed.

Sheriff of Orange County v. Boultbee · filed 1992-02-28(6)(a)

Consequently, appellee had the burden to prove compliance with the applicable statutory claim provisions of section 768.28(6) in that: (1) she presented the claim in writing to appellant; (2) she presented the claim in writing to the Department of Insurance; (3) the claim proffered to the Department was presented within three years after it accrued; and (4) appellant or the Department denied the claim in writing unless neither appellant nor the Department made any final disposition of the claim within six months after it was filed, at which time it is deemed a final denial.

Section 768.28(6) requires claimants to provide notice to the county and the Department of Insurance before pursuing tort claims against the county.

Arrowsmith v. Broward County · filed 1993-08-18(6)

For the reasons set out in the trial court's order, we affirm. ... The Plaintiffs have failed to specifically allege, or prove, that each claimant has provided notice to BROWARD COUNTY and the Department of Insurance, pursuant to the requirements of Section 768.28(6), Florida Statutes.

Section 768.28(6) requires notice of a tort claim against a county within three years of the accident.

Gardner v. Broward County · filed 1994-01-26(6)

At that time, February 5, 1991, plaintiffs would still have had several months in which to provide the proper notice, since the statute requires notice to be given within three years of the accident. ... We therefore reverse the directed verdict on the husband's consortium claim because defendant, by failing to deny the occurrence of the condition precedent "specifically and with particularity", waived the right to raise that issue after the statutory period for raising it had run.

Section 768.28(6)(a)’s written notice requirement is sufficiently alleged when the complaint asserts notice to the appropriate agency and attaches a denial from an insurance adjuster identifying that agency as its client.

Dicso v. Navarro · filed 1995-08-09(6)(a)

We find that the letter from the insurance adjuster which identified his client as the Broward County Sheriffs Office and stated “we have investigated the claim” and “we are respectfully denying your claim,” coupled with the allegation that appropriate notice had been given pursuant to the statute, when viewed in the light most favorable to appellants, sufficiently demonstrate that notice was given to the appropriate party.

Section 768.28(6)'s written notice requirement is satisfied for an added claim when the original notice describes the occurrence giving rise to that claim.

City of Miami v. Cisneros · filed 1995-09-13(6)

Under this same analysis, we find that the trial court properly permitted the Cisneroses to amend the complaint notwithstanding the city's defense of noncompliance with section 768.28(6), Florida Statutes (1993), which requires notice to the Department of Insurance. It is uncontroverted that by the Cisneros' original claim letter, the city was placed on notice of the boy's medical bills. This written notice effectively described the occurrence giving rise to the distinct cause of action, and thus, as the trial court concluded, acted as sufficient written notice for maintaining the added claim.

Section 768.28(6)(a) requires written notice that asserts a claim for compensation; a request for records alone does not suffice.

Smart v. Monge · filed 1996-02-14(6)(a)

Although the statute lacks specificity as to what is required to present a notice of claim, we conclude, at a minimum, the written notification must contain language notifying the agency of a claim; that is, a demand for compensation for an injury.

Section 768.28’s written claim notice requirement does not apply to state law claims against officials in their individual capacities.

Jones v. Kirkland · filed 1997-06-25(6)(a)

The written claim is not required when a claim is made against an official in their individual capacity. Hansen v. State, 503 So.2d 1324, 1326 (Fla. 1st DCA 1987). Appellant sued appellees in their individual and official capacities. Therefore, dismissal for failure to comply with the section 768.28 written notice requirement was not appropriate as to appellant's state law negligence claim against appellees in their individual capacities.

Section 768.28(6) permits notice that gives the Department of Insurance enough information to identify the entity responsible for the alleged injury, despite imprecise wording.

Labrada v. Metropolitan Dade County · filed 1998-08-19(6)

The letter does, however, clearly identify Miami International Airport as the location where the accident occurred. We are convinced the letter provided the Department of Insurance with sufficient information to ascertain that plaintiffs' claim was against the owners and/or operators of Miami International Airport notwithstanding the imprecise wording.

Section 768.28(6)(a) requires notice sufficient to present the claim to the appropriate agency and allow it to investigate.

Otero v. City of Hialeah · filed 1999-04-21(6)(a)

Because the notice was sufficient to present Otero’s claim to the appropriate agency, Section 768.28(6)(a), Florida Statutes, and allow the City to investigate, summary judgment on this basis was error.

Section 768.28(6) requires notice of the claim to the Department of Insurance; failure to give that notice supports summary judgment for the governmental defendant.

San Miguel v. Metropolitan Dade County · filed 2000-10-11(6)

Because the plaintiff failed to provide notice of the claim to the Department of Insurance as required by section 768.28(6), Florida Statutes (1995), we affirm the trial court’s entry of final summary judgment in favor of Metropolitan Dade County.

Section 768.28(6) permits a substituted father’s survivor claim when the original notice describes the wrongful death, includes a father’s survivor claim, and gives the agency sufficient notice that the substituted father could assert it.

Cunningham v. Florida Department of Children & Families · filed 2001-03-22(6)

Here, the notice given by Williams described the occurrence giving rise to the wrongful death action, and Williams’ notice to Appellee included the father’s survivor’s claim. Appellee was on notice that Appellant could bring a survivor’s claim, because it initially defended against the earlier survivor’s claim by arguing Appellant was Calesha’s presumptive father. Thus, Appellee received sufficient notice to maintain Appellant’s amended survivor’s claim substituting himself as father.