Florida Statutes 768.28: Sovereign Immunity, Notice, and Caps

Florida Statute 768.28 is the law that lets you sue the State of Florida, a county, a city, or another government body for injuries caused by the negligence of a government employee. It waives sovereign immunity, but only within tight limits: recovery is capped at $200,000 per person and $300,000 per incident, you must send a formal written notice before filing suit, and missing a deadline can end your case before a judge ever hears it.¹

Which Governments the Statute Covers

The waiver reaches broadly. “State agencies or subdivisions” includes Florida’s executive departments, the Legislature, the judicial branch (public defenders included), and state university boards of trustees. It also covers counties, municipalities, and corporations that primarily act as arms of state or local government, including the Florida Space Authority.¹

Two things have to be true for the claim to work. The employee who caused the injury was acting within the scope of their job, and the government would be liable under the same facts if it were a private person. You sue the entity, not the individual, unless the employee acted with bad faith or malicious intent (more on that below).

One boundary worth stating up front: the statute does not waive Florida’s Eleventh Amendment immunity in federal court. A 768.28 claim belongs in state court.²

The Written Notice You Must Send Before Suing

You cannot go straight to court. Before filing a lawsuit, you have to send a written notice of claim to the agency responsible for the injury. If the defendant is a state agency (not a county, municipality, or the Florida Space Authority), a copy also goes to the Florida Department of Financial Services.¹

The notice has to describe the incident in enough detail for the agency to investigate: date, location, how you were hurt, and the amount you are claiming. It also has to include your date and place of birth, your Social Security number (or federal identification number for an organization), and whether you owe any unpaid fines, penalties, or judgments over $200 to a state entity.³ The state can offset what it owes you against what you owe the state, which is why that last item is on the list.

Once the notice arrives, a waiting period starts. The agency has six months to investigate and respond. If six months pass with no final decision, the law treats the silence as a denial and you can sue. For medical malpractice and wrongful death, the waiting period is 90 days.³ A written denial before the period ends also opens the door to suit.

Skip the notice or get it wrong, and a judge can dismiss the case no matter how strong the underlying facts are.

Two Deadlines That Run at the Same Time

There are two clocks, and confusing them ends cases.

The notice has to be filed within three years of the date the claim arose. For wrongful death, the window is two years.¹

The lawsuit itself has to be filed within four years of the date the claim arose. Medical malpractice and wrongful death follow shorter deadlines under Florida’s general limitations statute.¹

These deadlines run simultaneously, not one after the other. Wait until year two and a half to send your notice and you are still inside the notice window, but the mandatory six-month waiting period will eat most of what remains on the four-year lawsuit clock. Delay on the notice can shut you out of court entirely.

Where You File and What You Can Collect

The complaint goes in the county where the incident happened or where the property at issue is located. If the agency has a regular office in that county, the suit may be filed there too.¹

Even with a favorable verdict, what the government has to pay is capped. No one person can recover more than $200,000 from a single incident. If several people are hurt in the same incident, the total payout across all claims cannot exceed $300,000.¹ A court can enter a judgment for more, but the government is not obligated to pay the excess.

The Claims Bill Process for Anything Above the Cap

Collecting anything above $200,000 or $300,000 requires a claims bill: a specific piece of legislation that has to pass both chambers of the Florida Legislature and be signed by the Governor.⁴

A sitting state senator or representative files the bill. Court remedies have to be exhausted first. The presiding officer of each chamber can refer the bill to a special master, who holds a hearing, finds facts, and reaches legal conclusions. That hearing works like a second mini-trial in which you again carry the burden of proving negligence and damages by a preponderance of the evidence.⁴

Even a favorable special master report still needs a majority vote in both chambers. This is a political process, not a legal one. The Legislature can reduce the amount, decline to hear the bill, or let it die in committee. Claims bills often take years, and payment is not guaranteed. People with catastrophic injuries from clear government negligence have walked away with nothing beyond the statutory cap.

What the Statute Will Not Let You Recover

Punitive damages are barred, no matter how reckless the conduct.¹ Pre-judgment interest is not available either.

The statute also bars claims by anyone who was participating in a riot, unlawful assembly, or civil disobedience at the time of the incident, if the claim arises from that activity.²

When the Government Is Still Immune

Not every harmful government action creates liability. Florida courts split government functions into two kinds. Discretionary functions are policy-level choices: where to build a road, how to allocate a budget, whether to launch a program. Operational functions are the carrying-out: maintaining the road once it exists, executing the budget, running the program day to day. The government can be liable for operational negligence. It stays immune for the policy choices themselves.⁵

The classic example: a city’s decision about where to place a stop sign is discretionary. Failing to fix the stop sign after it falls down is operational. This line is where a lot of claims break down, and it is often where the government focuses its defense.

Suing the Employee Personally

The default rule is that the government is the exclusive defendant. Individual employees cannot be named for conduct within the scope of their job.²

The exception is bad faith, malicious purpose, or reckless disregard for safety or property. When the employee crosses that line, the government is no longer on the hook, the employee loses the sovereign immunity shield, and the damage caps drop away because the caps apply only to the government entity.²

Attorney Fees Are Capped at 25 Percent

On a contingency case under 768.28, the lawyer’s fee cannot exceed 25 percent of any judgment or settlement.¹ That is lower than the usual one-third in private injury cases. On a maximum $200,000 recovery, that puts the fee ceiling at $50,000. Some attorneys are cautious about taking smaller government tort cases because of it.

Federal Civil Rights Claims as a Parallel Path

When a government employee violates your constitutional rights, you may also have a claim under 42 U.S.C. § 1983, which allows suits against anyone who deprives you of a federal right while acting under state authority.⁶ A Section 1983 case can go to federal court, allows punitive damages against individual defendants, and is not subject to Florida’s damage caps.

The tradeoffs are real. Suing a municipality or county under Section 1983 requires proving the violation came from an official policy or a widespread custom, not one employee’s mistake. State agencies and the State of Florida itself are generally immune from Section 1983 suits in federal court under the Eleventh Amendment. Qualified immunity often shields individual officers unless the constitutional violation was clearly established in existing case law.

Many serious misconduct cases include both a 768.28 state tort claim and a Section 1983 federal claim filed at the same time. The two have different rules, different courts, and different damages structures, so they complement each other.

How the IRS Treats What You Receive

Tax treatment depends on what the money is compensating.

Compensation for personal physical injury or sickness is generally not taxable. If you deducted related medical expenses in a prior year and got a tax benefit, that portion has to be included in income.⁷
Emotional distress tied to a physical injury is treated the same as the physical injury: generally not taxable.
Emotional distress without a physical injury is fully taxable, though you can reduce the taxable amount by medical expenses you paid for that distress and haven’t already deducted.⁷
Lost wages are taxable as ordinary income and subject to Social Security and Medicare taxes.
Property damage settlements are not taxable up to your adjusted basis in the property. Anything above that is taxable income.⁷

Because 768.28 bars punitive damages against the government, the “punitive damages are always taxable” issue rarely comes up in these cases. If a parallel Section 1983 claim against an individual officer produces punitive damages, those are fully taxable regardless of the underlying injury type.

1
Justia Law. Florida Code 768.28 – Waiver of Sovereign Immunity in Tort Actions
2
Florida Senate. Florida Code 768.28 – Waiver of Sovereign Immunity in Tort Actions
3
The Florida Legislature. Florida Code 768.28 – Waiver of Sovereign Immunity in Tort Actions
4
Florida Senate. Legislative Claim Bill Manual
5
Florida Senate. Review of Sovereign Immunity in Florida
6
Office of the Law Revision Counsel. 42 USC 1983 – Civil Action for Deprivation of Rights
7
Internal Revenue Service. Publication 4345, Settlements – Taxability