It’s the Law: Suits against the government — possible?

Q: I was injured when I slipped and fell at a City park. The walkway was very slippery and wet. My medical bills were over $30,000 Can I sue the city to recover for my injuries?

A: You may have heard of a doctrine known as “Sovereign Immunity.” We inherited that doctrine from England, where the king enjoyed complete immunity from liability.

The Doctrine of Sovereign Immunity has been judicially modified with varying degrees around the country. Florida is no exception.

Over the years, courts carved out exceptions to the doctrine of Sovereign Immunity based in large part on analysis of the action complained of. The first issue is whether the government owed a duty of care to the injured person which would create liability in the absence of Sovereign Immunity. The issue is usually pretty simple as it is the same question asked in any negligence law suit.

If a duty is owed to the defendant, the courts then ask another question. Was the governmental action operational or a planning level decision? This allows the court to determine if the claim against the government involved discretionary as opposed to operational matters.

Planning or discretionary governmental functions include such matters as the decision to build a park. Operational decisions are those parallel to conduct of business in the private sector, such as maintaining and repairing a park after it is built.

Sovereign immunity attaches to planning level or discretionary decisions. Operational decisions are not so insulated.

Assuming the city was negligent in maintaining the park, you may have a good argument that the city has liability and is not protected by Sovereign Immunity. You will need to prove negligence, i.e. that the condition was known or should have been known to the city and the city failed to warn or correct. The city would not necessarily know if someone spilled suntan lotion on the sidewalk just before you stepped on it so the facts will be important.

Section 13, Article X of the Florida Constitution confirms that Sovereign Immunity applies in Florida, but authorizes the State to waive Sovereign Immunity. The State has done that through Section 768.28 of Florida Statute which allows suit against the State in certain cases where Sovereign Immunity would otherwise provide protection. However, liability is capped at $100,000 per claim and $200,000 per incident.

As you might expect, suits against the government are technically complex. Various statutes mandate pre-suit notice and time limitations may be critical. Because of these complexities, obtaining an experienced attorney becomes virtually essential. I suggest you consult with an experienced attorney at the earliest opportunity.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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