Injured by a City, County, or State Agency in Florida: How Sovereign Immunity Claims Work Under § 768.28

By Jay Wasserman

A county bus runs a red light. A city sanitation truck backs into a pedestrian. A stop sign at a county intersection lies in the weeds for months after a storm, and a driver who never saw it is broadsided. A public hospital misses a diagnosis. A child is hurt on a school playground.

Each of those cases has a government defendant, and each of them runs on a different set of rules from an ordinary injury claim. Florida allows people to sue the state and its local governments for negligence, but only on the terms the Legislature set in Fla. Stat. § 768.28: a written claim presented to the right agency before suit, a waiting period while the government investigates, limits on what can be recovered, and a list of things the government cannot be sued for at all. The claims that fail usually fail on procedure, not on the merits.

This article explains how those claims work, and what to do first.

Sovereign immunity, and the limited waiver in § 768.28

Florida’s Constitution, in Article X, Section 13, allows the Legislature to waive the state’s immunity from suit by general law. Section 768.28 is that waiver. It allows tort claims for money damages against the state and its agencies and subdivisions for injury, death, or property loss caused by the negligent or wrongful act of a government employee acting within the scope of employment, under circumstances in which a private person would be liable under Florida law.

That last phrase does a lot of work. A government defendant is liable, if at all, on the same negligence principles that apply to a private driver, a private landowner, or a private hospital. The statute then adds its own conditions on top.

Who is “the government” for these purposes

The statute defines “state agencies or subdivisions” broadly. It includes the executive departments, the Legislature and the judicial branch, independent establishments of the state such as state university boards of trustees, counties and municipalities, and corporations primarily acting as instrumentalities or agencies of the state, a county, or a municipality. In practice, § 768.28 governs claims against defendants like these:

• The Florida Department of Transportation, for state roads, including Florida’s Turnpike Enterprise, which is part of FDOT.
• Counties and cities, for county and municipal roads, traffic signals, sidewalks, parks, beaches, pools, garages, and their vehicles and employees.
• Transit agencies such as Miami-Dade’s transit system, Broward County Transit, Palm Tran, and LYNX in Central Florida, depending on how each is organized.
• School boards, for school buses, school property, and school employees.
• Public hospital systems and districts, such as the Public Health Trust that operates Jackson Health System, and the North and South Broward Hospital Districts that operate Broward Health and Memorial Healthcare System.
• Sheriffs and police departments, for crashes involving patrol cars and other employee conduct.
• Special districts, such as port authorities, airport authorities, and water management districts.

Two warnings about this list. First, it is not always obvious which entity is responsible. A road can be state, county, or city maintained, sometimes on the same block, and a signal on a state road may be maintained by the county under an agreement. Notice sent to the wrong entity is a common and serious mistake. Second, private contractors are not the government. A private company that contracts with a county to run a bus route, mow medians, or repair a road is usually an ordinary defendant, with ordinary deadlines and no damages cap, and is often the more important target in the case. Brightline, for example, is a private railroad. Identifying every party, public and private, is the first task.

Step one: the written claim, before any lawsuit

The government cannot be sued under § 768.28 until a written claim has been presented and denied. Under § 768.28(6)(a), the claimant must present the claim in writing to the appropriate agency, and, except for claims against a municipality or county, also to the Florida Department of Financial Services, within three years after the claim accrues. For a wrongful death claim, the claim must be presented to the Department of Financial Services within two years.

The notice is not a formality. The statute requires specific information, including the claimant’s date and place of birth and Social Security number, and a disclosure of certain unpaid adjudicated claims of more than $200 that the claimant owes to the state, which the government can set off against any recovery. The Florida Supreme Court has held that the notice requirements are conditions precedent that must be strictly satisfied: in Menendez v. North Broward Hospital District, 537 So. 2d 89 (Fla. 1988), the claim against a public hospital district was barred because notice was not given within the statutory period.

Good practice is to send the notice early, by a method that proves delivery, to every entity that may be responsible, and to the Department of Financial Services even when the defendant may be a city or county. A defective or late notice usually cannot be fixed after the deadline has passed.

Step two: the investigation period

After the claim is presented, the government has time to investigate before suit can be filed. Under § 768.28(6)(d), if the agency or the Department of Financial Services does not make a final disposition of the claim within six months, the claim is deemed denied. For medical malpractice and wrongful death claims, that period is 90 days. A written denial before the period runs out also allows suit to be filed.

A lawsuit filed before the claim is denied, actually or by the passage of time, is premature and subject to dismissal. Planning for the waiting period is one reason these cases need to start early.

Step three: the limitations period, and why four years is a trap

Under § 768.28(14), a negligence action against the state or one of its agencies or subdivisions is barred unless it is filed within four years after the claim accrues. Claims for medical malpractice and wrongful death have shorter periods tied to the general limitations statute, and the statute tolls the limitations period while the agency considers those claims.

The 2023 tort reform, which shortened the general negligence limitations period in § 95.11 to two years for claims arising on or after March 24, 2023, did not rewrite § 768.28(14). So a negligence claim against a county may have a longer filing deadline than the same claim against a private party. Do not plan a case around that.

Most government cases have a private defendant too: the other driver, a contractor, a property owner, a medical group. Those claims usually carry the two-year deadline. The written claim to the government must still go in within three years, and the six-month waiting period must run before suit. The safe approach is to treat the earliest applicable deadline as the real one, present the government claim promptly, and file against everyone within two years. Our guide to Florida’s personal injury time limits sets out the full set of deadlines.

The damages caps, and the 2026 veto

Under § 768.28(5)(a), the government’s liability is capped at $200,000 per person and $300,000 per incident for all claims arising out of the same event. The government is not liable for punitive damages or prejudgment interest. Those limits have applied to claims arising since October 1, 2011.

They nearly changed this year. In the 2026 session, the Legislature passed HB 145, which would have raised the caps and made other changes to the sovereign immunity statute. Governor DeSantis vetoed the bill on June 30, 2026, citing concerns that higher caps would encourage more litigation against local governments. The caps therefore remain at $200,000 and $300,000. Proposals to raise them have been filed in several recent sessions, and the issue is likely to return.

The caps limit what the government can be made to pay, not what a jury may award. A jury can return a verdict above the cap, and a judgment can be entered for the full amount, but the government pays only up to the cap unless one of two things happens:

• The government settles above the cap within its insurance. The statute allows the state or a subdivision to agree, within the limits of its insurance coverage, to settle a claim or pay a judgment above the caps without further action by the Legislature. Whether an entity carries insurance above its self-insured layer, and in what amount, is one of the first things to find out.
• The Legislature passes a claim bill. The excess can be reported to the Legislature, which may pass a claim bill directing payment. Claim bills are discretionary acts of the Legislature, not a right. They go through a special master hearing and a legislative process that can take years, and many are never passed.

The per-incident cap also matters when several people are hurt. Two injured passengers, a driver, and a pedestrian hit by the same county bus share $300,000 from the county, however serious their injuries. That is one more reason to identify every other source of recovery early.

What the government cannot be sued for: planning versus operational decisions

Even when every procedural step is satisfied, some government conduct is not actionable at all. Florida courts distinguish between planning-level decisions, which involve the exercise of basic governmental discretion and remain immune, and operational-level acts, which carry out those decisions and are subject to suit. The Florida Supreme Court adopted that distinction in Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla. 1979), a case involving a county’s failure to maintain a stop sign and pavement markings, and held that maintaining existing traffic control devices is operational.

In road and signal cases, the line usually falls like this:

• Generally immune: decisions about whether to build a road, where to install a traffic signal, how to allocate a limited budget, and the basic design of a road or intersection.
• Generally actionable: failing to maintain an existing road, signal, or sign; failing to repair a known defect; and failing to warn of or correct a known dangerous condition that is not readily apparent. In City of St. Petersburg v. Collom, 419 So. 2d 1082 (Fla. 1982), the court held that a government entity that creates a known dangerous condition, not readily apparent to people who could be injured, has an operational duty to warn of it or correct it, even if the underlying design decision was itself immune.

The Florida Supreme Court has also held, in Trianon Park Condominium Ass’n v. City of Hialeah, 468 So. 2d 912 (Fla. 1985), that some governmental functions, such as enforcing laws and inspecting private property for code compliance, do not create a duty of care to individual members of the public at all. Claims based on a building inspector’s failure to catch a defect, or police failure to prevent a crime, usually fail for that reason, although claims arising from a specific officer’s operational conduct, such as a crash during a police chase, are treated differently.

These distinctions are fact-intensive. The evidence that wins a road case is usually the government’s own paper: prior crash history at the location, citizen complaints, work orders, maintenance logs, and internal emails showing the entity knew about a problem and did not fix it. Those are public records, and a request under Chapter 119 can be made before any lawsuit. Our guide to pedestrian and bicycle accidents discusses how those claims arise on Florida roads.

The employee is usually not the defendant

Under § 768.28(9)(a), a government officer, employee, or agent is not personally liable for injuries caused within the scope of employment unless the employee acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. For ordinary negligence, such as a county employee who rear-ends someone in a county truck, the claim is against the government entity, and the employee is not a proper defendant.

The rule cuts both ways. If an employee’s conduct does rise to bad faith, malice, or wanton and willful disregard, the employee may be personally liable, but the government entity is not liable for that act. Which theory to plead, and against whom, is a strategic decision with real consequences for collectability.

Attorney’s fees, costs, and liens

Under § 768.28(8), attorney’s fees in a claim against the state or its agencies or subdivisions may not exceed 25 percent of any judgment or settlement. Our guide to where a Florida injury settlement’s money goes explains how fees, costs, and medical liens are paid from a recovery, and the same principles apply here, along with any setoff the government is entitled to for unpaid adjudicated claims disclosed in the notice.

Other rules of Florida injury law still apply. Under § 768.81(6), a claimant found more than 50 percent at fault generally cannot recover in a negligence case, and § 768.0427 generally limits evidence of past medical expenses to amounts actually paid. Where the claim involves a public hospital or its physicians, the Chapter 766 presuit requirements for medical malpractice apply on top of § 768.28, as our guide to medical malpractice claims in Florida explains.

Federal defendants: a different statute entirely

Section 768.28 covers Florida’s state and local governments. It does not cover the federal government. A crash with a U.S. Postal Service truck, an injury at a VA hospital, or a fall at a federal building is governed by the Federal Tort Claims Act. Under the FTCA, a written administrative claim, usually on Standard Form 95, must be presented to the responsible federal agency within two years under 28 U.S.C. § 2401(b), the agency generally has six months to respond, and a suit must be filed in federal court within six months after a denial. There are no punitive damages, no jury trial, and the federal employee is generally not a defendant. The FTCA has no general damages cap, but the amount claimed on the administrative form generally limits what can be recovered, so the form has to be completed with care.

A hypothetical

Hypothetically: a Palm Beach County resident is driving home on a county road when a car pulls out from a side street and broadsides her. The stop sign that should have controlled the side street was knocked down weeks earlier, and the other driver never saw it. She suffers a fractured pelvis and a shoulder injury that requires surgery. The other driver carries only Florida’s required minimums and no bodily injury liability coverage.

Her lawyer requests the county’s records for the intersection under Chapter 119 and finds two citizen reports of the downed sign, and a work order that was opened and never closed. That is an operational failure to maintain an existing traffic control device, the kind of claim Commercial Carrier recognized. The lawyer presents a written claim to the county, with a copy to the Department of Financial Services, within a few months of the crash, along with the information the statute requires. The county does not resolve the claim within six months, so the claim is deemed denied.

Suit is filed against the county and the other driver well within two years. The case resolves with a payment from the county at the $200,000 per-person cap, combined with her own uninsured motorist coverage, because the other driver had no bodily injury coverage. Had her damages greatly exceeded those sources, the only path to the rest would have been a claim bill in the Legislature. Our guide to uninsured motorist claims in Florida explains how that coverage works alongside a liability claim.

What to do now

If a government vehicle, employee, road, or property may have played a role in your injury:

1. Identify every possible defendant, public and private, including who owns and who maintains the road, vehicle, or property. Crash reports, property records, and maintenance agreements answer most of these questions.
2. Calendar the shortest deadline, which is usually the two-year limitations period against private defendants, and work backward from it, leaving at least six months for the government’s investigation period.
3. Present the written claim early to the agency and to the Department of Financial Services, with all the information the statute requires, by a method that proves delivery.
4. Request public records about the location, vehicle, or employee, including complaints, work orders, and prior incidents, and send a preservation letter for video and data that may be overwritten.
5. Get medical care and keep every record. The damages proof is built the same way it is in any injury case.
6. Check your own coverage, especially uninsured motorist coverage, which is often what pays the part of the loss the caps leave behind.

Frequently asked questions

Can I sue the city, the county, or the state in Florida for an injury? Yes, in many cases. Section 768.28 waives sovereign immunity for negligence claims where a private person in the same position would be liable. But you must present a written claim before suing, wait for it to be denied, and accept limits on what the government can be made to pay.

How long do I have to notify the government? The written claim must generally be presented within three years after the claim accrues, and within two years for wrongful death. As a practical matter, it should be sent much sooner, because the government’s investigation period must run before suit and claims against any private defendants usually must be filed within two years.

How much can I recover from a Florida government entity? The government can be made to pay up to $200,000 per person and $300,000 per incident, without punitive damages or prejudgment interest. A judgment can be entered for more, and the entity may settle above the cap within its insurance, but otherwise anything above the cap can be collected only through a claim bill passed by the Legislature. A 2026 bill to raise the caps was vetoed, so those limits remain in place.

Can I sue the government employee who caused my injury? Usually not. For ordinary negligence within the scope of employment, the claim is against the government entity. An employee can be personally liable only for conduct in bad faith, with malicious purpose, or in wanton and willful disregard of safety, and in that situation the entity is not liable for the act.

A pothole or a broken traffic signal caused my crash. Is that a claim? It can be. Failing to maintain an existing road, sign, or signal, or failing to warn of a known dangerous condition, is generally operational conduct that can be the basis of a claim. Decisions about road design and where to put signals are generally immune. The government’s own maintenance and complaint records usually decide which side of the line a case falls on.

What if the vehicle that hit me belonged to the federal government? Then the Federal Tort Claims Act applies, not § 768.28. A written administrative claim must be presented to the responsible federal agency within two years, usually on Standard Form 95, and the case, if it is not resolved, is tried to a federal judge without a jury.

Talk to a Florida attorney about a claim against the government

Claims against Florida’s state and local governments are won or lost on details that ordinary injury cases do not have: finding the right entity, presenting a complete written claim on time, planning around the investigation period and the shortest deadline, proving an operational failure from the government’s own records, and building the case so that every other source of recovery is in place when the caps apply.

KWBR’s auto accident, premises liability, medical malpractice, and wrongful death practices handle injury claims involving government vehicles, roads, property, and public hospitals from our Orlando, Fort Lauderdale, and Boca Raton offices. If a city, county, or state agency may have played a role in your injury, contact us early, while every deadline is still ahead of you.

This article is for general informational purposes and is not legal advice. Statutes and case law change, sovereign immunity rules turn on the specific entity and facts involved, and every case is different; consult a qualified Florida attorney about your situation.