Florida Statute 768.28 is the law that lets you sue the state, a county, a city, a school district, or another Florida government agency when a government employee’s negligence injures you. It is a limited waiver of sovereign immunity: the door is open, but the statute caps your damages, requires written notice before you file, sets filing deadlines, and limits what your attorney can charge. Miss a step and a strong claim can be dismissed before a judge ever looks at the facts.
What Negligence Claims the Statute Allows
Section 768.28 makes the state and its political subdivisions liable for injuries caused by the negligent acts or omissions of government employees acting within the scope of their jobs. The negligence standard is the same one courts apply to private individuals. If a city bus driver runs a red light and hits your car, the city faces the same type of analysis a private employer would.
The waiver reaches every level of Florida government: the state itself, every state agency, and every political subdivision, including counties, municipalities, school districts, and special districts. What it does not reach is just as important. The waiver covers tort claims based on negligence. It does not authorize punitive damages, and it does not allow prejudgment interest. You can recover for your actual losses. You cannot recover anything designed to punish the government.
How Much You Can Recover
The most consequential limit in 768.28 is the cap on damages. The government cannot be required to pay more than $200,000 to any single person, or more than $300,000 total for all claims arising from the same incident. Those numbers hold even if a jury returns a much larger verdict.
For minor injuries, the caps may be enough. For catastrophic ones, they almost never are. A court can enter a judgment above the caps, but the government is not legally obligated to pay the excess. To collect anything beyond the statutory ceiling, you have two options.
The first is a claims bill. You petition the Florida Legislature to pass a special bill directing payment of the excess. A legislative special master typically holds a hearing that looks much like a trial, reviews the evidence, and issues a recommendation. The Legislature then votes on whether to authorize payment. The process is slow, politically uncertain, and far from guaranteed.
The second is an insurance settlement. If the government entity carries insurance above the caps, it can agree to settle for the insured amount without legislative action. Settling within insurance limits does not waive any sovereign immunity defense and does not raise the entity’s liability ceiling for future claims.
The caps have sat at the same dollar amounts for decades. In 2025, both chambers passed legislation (HB 145) to raise the limits to $350,000 per person and $500,000 per incident. Whether and when the new figures take effect depends on the final enacted version and its effective date, so check the current text of 768.28 before you rely on either number.
Pre-Suit Notice and Deadlines
Before you can file a lawsuit under 768.28, you must send written notice of your claim to the government agency responsible for the injury. If the claim is against a state agency, you must also send written notice to the Department of Financial Services. Claims against a municipality, a county, or the Florida Space Authority require notice only to the entity itself.
The notice must be submitted within three years after the claim accrues. Accrual does not always mean the date of the injury; depending on circumstances, it can mean the date you knew or should have known about the injury. Wrongful death claims carry a shorter deadline: two years from the date the claim accrues.
After you file notice, you have to wait. The agency (and the Department of Financial Services, where applicable) has six months to investigate and respond, and during that window no lawsuit can be filed. If the agency denies your claim in writing, you may proceed to court. If the agency says nothing within six months, the law treats that silence as a denial and you may then file suit.
Courts have little flexibility on these steps because the requirements are written into the statute itself. Missing a deadline by a day is grounds for dismissal.
What the Waiver Does Not Cover
Section 768.28 opens the door to negligence claims, but several categories stay outside it.
- Punitive damages and prejudgment interest. The statute explicitly excludes both.
- Intentional misconduct. If a government employee intentionally harms you rather than acting negligently, the waiver does not apply to the entity. The employee may be personally liable; the entity is shielded.
- Discretionary government functions. Florida courts distinguish between “planning-level” decisions (policy choices, resource allocation, regulatory judgments) and “operational-level” actions (day-to-day tasks carrying out those policies). Only operational acts fall within the waiver. A city council’s decision about where to place a traffic signal is a planning-level choice generally protected by immunity. A maintenance crew’s failure to repair a broken signal is an operational failure that can support a claim.
The line between planning and operational decisions is not always obvious, and it generates more litigation than almost any other part of the statute.
Riot and Unlawful Assembly Exception
Florida law carves out an exception for municipalities that fail to allow their police departments to respond appropriately during a riot or unlawful assembly. If a municipality breaches that duty, it faces civil liability for resulting injuries, deaths, or property damage, and the standard sovereign immunity caps do not apply. Potential liability in those cases is uncapped.
Can You Sue the Government Employee Personally?
Generally, no. You cannot name an individual government employee as a defendant for actions taken within the scope of their job. Your remedy is a claim against the entity. The statute channels negligence liability through the government and its insurance.
That protection disappears when an employee acted in bad faith, with malicious purpose, or with willful and reckless disregard for the safety or rights of others. When conduct crosses that line, the employee can be sued personally, and the government entity is no longer liable for the employee’s actions.
Federal Civil Rights Claims Are Separate
Florida’s sovereign immunity does not block federal civil rights claims brought under 42 U.S.C. ยง 1983. Those are separate actions alleging that a government employee violated your constitutional rights while acting under color of state law, and they bypass state sovereign immunity because they arise under federal law.
Some limits still apply. You cannot sue the state itself or a state agency under Section 1983, because a state is not a “person” under that statute. You can sue local government entities such as cities and counties, but only if the constitutional violation resulted from an official policy, a widespread custom, or a deliberate failure to train or supervise employees. Showing a one-off violation by a city employee is not enough; you must connect the violation to a policy or practice of the entity.
Individual officials can also be sued under Section 1983. They may raise a qualified immunity defense, which succeeds unless the right they violated was clearly established at the time. A Florida government employee can be shielded by state law under 768.28 and still face a federal lawsuit under a different standard.
Attorney Fee Cap
Section 768.28 caps attorney fees at 25 percent of any judgment or settlement. No attorney may charge, demand, or collect more than that percentage for work on a claim against the state or its subdivisions. Combined with the damage caps, this fee limit affects what actually reaches an injured claimant. If you recover the per-person maximum of $200,000, your attorney’s share cannot exceed $50,000. After litigation costs and medical liens, the net recovery is smaller still. Knowing those numbers before you file keeps the decision to pursue a claim grounded in what the statute will actually deliver.