Understanding Sovereign Immunity in Florida: A Plain-English Guide
A lot of people assume you cannot sue the government in Florida. That is wrong — but the people who know you can sue sometimes assume the process looks like any other personal injury claim. That is also wrong. Florida law lets you bring a claim against a state agency, a county, a municipality, or a sheriff’s office, but only on the State’s terms, under §768.28, Florida Statutes. Miss any one of the procedural steps in the first weeks and the claim dies, regardless of how strong the underlying facts are.
What follows is the plain-English version of the rules my office uses on these cases. Where I cite a statute, I will tell you in one sentence what the statute actually does. After thirty-plus years of personal injury practice in Lee and Collier Counties, I have come to believe most people lose government-related cases not because the facts are weak but because they missed a procedural step that no one ever told them existed.
What Florida law actually says about sovereign immunity
Sovereign immunity is the old idea that the government cannot be sued without its consent. Florida’s version of that idea lives in §768.28, Florida Statutes, which is the legislature’s partial waiver of that immunity. In plain English: the State has agreed in advance to be sued for the negligence of its employees acting in the scope of their employment, but only on the State’s terms. Article X, Section 13 of the Florida Constitution is what gave the legislature the authority to set those terms in the first place.
The terms have three pieces that matter to almost every client.
The cap. Recovery is limited to $200,000 per person and $300,000 per incident. That is a hard ceiling. If five people were hurt when a public-works truck ran a stop sign, those five people collectively share the $300,000, regardless of how catastrophic any individual injury is. Anything above the cap requires what Florida calls a claims bill — a separate piece of legislation passed by the Florida House and Senate and signed by the Governor, asking them as a matter of grace to authorize a larger payment. It is a political process, not a courtroom one.
The notice. Before you can file a lawsuit, you must serve a written pre-suit notice on (1) the responsible agency and (2) the Florida Department of Financial Services. The agency then gets 180 days to investigate. You cannot sue during those 180 days. If the agency denies the claim earlier, the wait is over and you can file. If they sit silent for 180 days, you can file the day after.
The deadline. You have three years from the incident to serve that pre-suit notice in a typical negligence case. Wrongful death has a tighter two-year window. And separately, §95.11(4)(a), Florida Statutes — the general negligence statute of limitations the Legislature shortened from four years to two years in the 2023 tort reform — still controls when the lawsuit itself must be on file. The practical calendar is therefore shorter than the three-year notice window. We treat these as two-year cases in our office, full stop.
One more piece worth knowing. Florida runs a modified comparative negligence rule under §768.81, Florida Statutes: if a jury finds you more than fifty percent at fault for your own injury, you recover nothing. That rule applies in sovereign-immunity cases the same way it applies in any other negligence case, and the State’s lawyers know how to use it. When a government driver hits a citizen, the defense almost always starts by trying to put more than half the fault on the citizen.
Five recurring fact patterns in our government-claim files
After three decades of these claims, the calls cluster into roughly five recurring fact patterns:
- Government vehicle collisions. Sheriff’s cruisers, sanitation trucks, county pickups, school buses, ambulances responding non-emergency. The crash facts look like an ordinary auto case, but the procedural overlay is entirely different.
- Premises hazards on government property. A broken sidewalk in a city right-of-way, an unmarked drop-off in a public park, a flooded floor in a county courthouse. The agency often argues that the dangerous condition was a discretionary design choice, which is where these cases get hard.
- Public-hospital and EMS care. Treatment at a state hospital, a county-run facility, or by a public EMS crew. The cap can devastate a serious medical malpractice case because the actual damages routinely run into the millions.
- School and child-injury cases. Playground falls, sports injuries, transportation incidents. School boards sit inside the 768.28 framework, and the pre-suit notice has to go to the board, not just the school.
- Intentional or willful conduct by a public employee. The hardest category. Florida draws a line between negligence committed in the scope of employment (the agency is on the hook, subject to the caps) and conduct so bad it falls outside scope (the employee is personally on the hook, and the cap does not protect them).
Sovereign immunity — why these cases are harder than they look
From the outside, a citizen injured by a government employee assumes the case should be straightforward: there is a police report, there is video, there is an employer with deep pockets. Inside the case, three complications show up almost every time.
The first is the discretionary/operational distinction. Florida courts will dismiss a case if the conduct you are complaining about was a high-level policy choice — how a road was designed, how a department was budgeted, how a program was run. Conduct that carries out the policy on the ground is fair game; conduct that is the policy itself is not. The line is blurry, the defense lawyers know it, and they will brief that motion in every case where they can plausibly file it.
The second is the cap. The $200,000 per-person ceiling means that a permanently injured client with $3 million in real damages still recovers $200,000 unless we are willing to walk the claims-bill road. Claims bills take years, require lobbyist support, and live or die on legislative politics. I tell clients up front that a claims bill is a real path but a slow one, and we plan for it from day one when the damages justify it.
The third is the notice mechanic. The pre-suit notice has to go to both the agency and the Department of Financial Services, and it has to identify the claimant with enough specificity — including, in most cases, the claimant’s date of birth and federal tax identification or Social Security number — that the State can actually investigate. Notices that miss those elements get bounced, the clock keeps running while you fix it, and people lose cases on the calendar that should have won on the facts.
What to do if a government entity caused your injury
If the incident has already happened and you are reading this trying to decide what to do next, here is the checklist I give people who call our office in this situation. None of it is generic — every item is something I have watched a case turn on.
- Get the crash report or incident report in writing immediately. Under §316.066, Florida Statutes, a Florida crash report is supposed to be generated, and that document anchors the case. For non-vehicle incidents, get the agency’s internal incident report — request it in writing the same day if you can.
- Photograph the scene and the injuries before anything is repaired or healed. Government agencies fix hazards quickly once they are on notice. If a sidewalk is broken, a sign is missing, a stairwell is wet, photograph it the day of and again forty-eight hours later. The before-and-after pair is often the most useful evidence in the file.
- Identify the right agency, not just the right uniform. A deputy at a scene may be Lee County Sheriff’s Office, Collier County Sheriff’s Office, FHP, or a municipal officer on a mutual-aid call. The pre-suit notice has to go to the correct employing agency. Misaddressed notice is one of the most common reasons we see claims fail.
- Write down the names and unit numbers of every public employee involved. Agencies rotate personnel and reassign equipment. The cleaner your contemporaneous notes, the faster discovery moves later.
- Do not give a recorded statement to the agency or its risk-management group. The investigator who calls in the days after the incident works for the entity you may be suing. A polite “I’d like to have my attorney present” is a complete sentence. Use it.
- Call a lawyer who handles government-claim cases before you sign anything. Routine personal-injury intake forms do not always pick up the 768.28 procedural overlay. The pre-suit notice has to be drafted, served, and tracked, and a missed step in that first ninety days can end a case that should have settled.
Key Takeaways
- Florida lets you sue the State and its agencies for employee negligence under §768.28, but recovery is capped at $200,000 per person and $300,000 per incident — anything above requires a legislative claims bill.
- You must serve a written pre-suit notice on the agency and on the Florida Department of Financial Services, and then wait out a 180-day investigation period before filing suit.
- The pre-suit notice window is three years (two for wrongful death), but the underlying negligence statute of limitations is now two years post-2023 reform — treat these as two-year cases.
- Discretionary, policy-level decisions stay immune; operational acts by employees on the ground are what the waiver actually reaches.
- Intentional or willful conduct by a public employee usually falls outside the cap and outside the agency’s protection, which changes the entire damages calculus.
Frequently Asked Questions
Q1. Can I sue the State of Florida if a government employee hurt me?
Yes, but only within the framework of Florida Statute 768.28. The State waives a portion of its sovereign immunity for the negligent acts of its employees acting within the scope of their employment. You cannot simply file suit on day one — you have to give pre-suit notice to the agency and to the Florida Department of Financial Services, then wait out a 180-day investigation period before a lawsuit can be filed.
Q2. How much can I recover against a Florida government entity?
Florida caps a sovereign-immunity recovery at $200,000 per person and $300,000 per incident, no matter how serious the injury. Anything above that requires a separate claims bill passed by the Florida Legislature, which is a political process, not a legal right. Punitive damages and pre-judgment interest are off the table.
Q3. How long do I have to file a claim against a Florida government agency?
For most negligence claims under 768.28 you have three years to deliver written notice to the agency and to the Department of Financial Services. Wrongful death claims have a tighter two-year window. The standard two-year negligence statute under 95.11(4)(a) still applies once your suit is finally filed, so the practical clock is shorter than three years.
Q4. Does sovereign immunity cover cities and counties, or only the State?
It covers both. Counties, municipalities, school boards, sheriff’s offices, public hospitals, and many government-affiliated corporations all sit inside the 768.28 framework. The same caps, the same pre-suit notice, and the same 180-day waiting period apply to Lee County, the City of Fort Myers, the City of Bonita Springs, and most other local bodies along the I-75 corridor through Lee and Collier Counties.
Q5. Are there cases where the government keeps full immunity and I cannot sue at all?
Yes. Discretionary, policy-level decisions — how to allocate police resources, how to design a road, whether to fund a program — are generally protected. Operational acts are what the waiver reaches: the deputy who runs a red light, the maintenance crew that leaves a hazard in the sidewalk, the public-hospital nurse who skips a protocol. If the conduct was an employee carrying out the policy, you usually have a case. If the conduct was the policy itself, you usually do not.
Talk to our firm before the clock runs
If you were hurt by a government vehicle, on government property, or by a public employee anywhere in Southwest Florida — from Bonita Springs up through Fort Myers, out to Lehigh Acres and Cape Coral, or south into Naples and Estero — call our office. The pre-suit notice rules under §768.28 do not forgive late filings, and the first ninety days of a case like this are where it is usually won or lost. Call 239-992-8259 for a free consultation. There is no fee unless we recover for you.
About the Author
Since founding Pittman Law Firm, P.L., David B. Pittman, Esq. has spent more than thirty years representing injured clients across Southwest Florida. The firm represents injured clients across Lee and Collier Counties — from the firm’s main office at Windsor Place on Bonita Beach Road through Fort Myers, Naples, Estero, Cape Coral, and Lehigh Acres, with a particular focus on commercial-vehicle, complex-liability, and serious-injury cases.
His education runs through The Citadel, The Military College of South Carolina, and then the University of South Carolina School of Law. His honors include an AV-Preeminent rating at Martindale-Hubbell and membership in the Multi-Million Dollar Advocates Forum.
David has held a Florida real estate broker license for twenty-five years, a credential that shapes how the firm reads the property side of premises cases. The firm handles personal injury cases across Lee and Collier Counties, serving Fort Myers, Bonita Springs, Naples, Cape Coral, Estero, and Lehigh Acres, with offices at Windsor Place in Bonita Springs (main) and Fort Myers (satellite). Call 239-992-8259 for a free consultation.
The information on this page is for general information only and is not legal advice for any individual case. Reading this page or contacting the firm does not by itself create an attorney-client relationship. This page is attorney advertising under the rules of The Florida Bar.