the king can do no wrong - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Sovereign Immunity in Florida: A Shield from Accountability

Jeffrey P. Gale, P.A. — Thu, 26 Jun 2025 15:15:30 GMT

Sovereign immunity stems from the medieval doctrine that “The King can do no wrong.” In Florida, this principle historically meant that government entities could not be held financially responsible for harm caused by their negligence.

That changed in 1975, when the Florida Legislature enacted Section 768.28, Florida Statutes, which partially waived sovereign immunity. For the first time, individuals could sue the state and its subdivisions—cities, counties, municipalities—for certain torts. However, this right came with significant limitations. Most notably, the statute capped damages at $100,000 per person and $200,000 per incident, regardless of the actual extent of the injuries or the number of victims. These caps remained unchanged for 36 years.

Modest Reform, Lingering Injustice

In 2009, the Legislature passed a long-overdue amendment, increasing the caps to $200,000 per individual and $300,000 per claim, effective July 1, 2011. While this was a step in the right direction, it remains grossly inadequate for victims of catastrophic government negligence.

Under these limits, if four people are severely injured by a government employee’s negligence, they must divide a maximum of $300,000 among them—no one may recover more than $200,000 individually, even if their injuries are lifelong or fatal. Not even a jury’s decision overrides the cap. For example, say a jury, after weighing the evidence, decides that a person’s damages, between pain and economic loss, exceed $5 million. After the verdict is rendered, the judge will thank the jurors for their service and send them on their way. In the case of a single harmed person, the most the court can award to that person is the $200,000 cap. That’s perverse. The jury’s opinion, after weighing the evidence fairly and impartially, is entirely disregarded in favor of unfair money-influenced legislation.

In 2025, two bills were put forward in the Florida Legislature to increase the limits to $1 million/$3 million, with incremental increases over time. The bills were opposed by organizations such as the Florida League of Cities, Florida Association of Counties, and Florida Hospital Association, while 25 lobbyists were amassed to kill the bills. While one of the bills was approved by the House, both died before reaching the Governor’s desk.

Planning-Level Immunity: An Untouchable Zone

Despite the partial waiver, absolute immunity remains intact for governmental decisions classified as planning-level or discretionary. These include judgments regarding the design, improvement, or initial construction of infrastructure—such as road layouts, intersection design, and placement of traffic control devices.

However, Florida courts have carved out a narrow exception: When a government entity is aware of a serious hazard that creates a hidden danger—effectively a trap—for the public, immunity is waived, and liability may attach (subject again to the statutory damage caps).

When Immunity Becomes Indifference

Our firm recently litigated a case that illustrates the dangers of this doctrine. We represented the husband and three young children of a woman who drowned after her cousin’s car veered into a canal at a poorly marked curve on a dark, rainy night. We uncovered that other vehicles had previously gone off the road at the same location, resulting in fatalities and near-fatal accidents. Just two months after our case, another young woman died under almost identical circumstances at the same curve.

The danger was well known. Still, no corrective action was taken until after these avoidable tragedies. After our lawsuit was instituted, one of the responsible government entities installed an extended guardrail—a fix costing very little —but only after multiple preventable deaths.

We argued, successfully, that this was not a protected planning-level decision. Rather, it was a failure to correct a known trap. But even when liability is established, the available remedy remains a fraction of what private defendants would face.

The Real Problem: Lack of Accountability

This case underscores the greatest flaw in sovereign immunity: a lack of financial accountability. Government entities, shielded from large verdicts, face little incentive to act with the same diligence expected of private citizens or corporations. Where a private business may be compelled to act swiftly to avoid multi-million-dollar judgments, the government can act slowly—or not at all—knowing that its worst-case financial exposure is capped by law.

In effect, sovereign immunity insulates misconduct and dulls the motivation to prevent harm. When negligence results in death or permanent injury, a figurative slap on the wrist is the only consequence.

It’s not just outdated. It’s unjust.

Time for Change

Our firm firmly believes that sovereign immunity, in both its absolute and limited forms, should be abolished or substantially reformed. Government entities should be held to the same standard of care as private individuals and corporations when their negligence causes serious harm.

In a just society, no one—least of all the government—should be above accountability.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Why Florida’s Sovereign Immunity Cap Defeats Accountability and Justice

Jeffrey P. Gale, P.A. — Tue, 10 Jun 2025 20:42:06 GMT

One of the central purposes of a strong civil justice system is to promote public safety by holding wrongdoers financially accountable. When negligent individuals or corporations know they may face significant financial liability, they are far more likely to act responsibly. Short of criminal prosecution, few things are more effective at incentivizing safe conduct than the threat of losing money.

Sovereign immunity, however, undercuts this principle. Rooted in the old-world doctrine that “the king can do no wrong” (Latin: Rex non potest peccare), sovereign immunity was designed to shield monarchs from legal consequences. Today, this concept survives in modern constitutional monarchies like the United Kingdom, Japan, and the Netherlands. Unfortunately, it has also made its way into American law—particularly in states like Florida.

Florida’s Version of Sovereign Immunity

Florida has adopted a modified form of sovereign immunity for civil cases, including personal injury and wrongful death claims. Under Florida Statute § 768.28(5)(a), the state and its agencies are shielded from full liability. Compensation for damages caused by a government entity is capped at $200,000 per individual and $300,000 per incident, regardless of how catastrophic the harm may be.

So, whether someone suffers minor injuries or a family loses a loved one due to government negligence, the total financial exposure for the state remains the same. This cap applies even if a jury awards millions in damages based on compelling evidence and clear fault.

Why the Cap Undermines Public Policy

Florida’s sovereign immunity cap actively defeats the public policy it claims to serve. Instead of promoting safety and accountability, it does the opposite—discouraging justice and denying fair compensation.

1. Discourages Responsible Conduct

When the worst financial consequence a government agency faces is $300,000—no matter the harm—there’s little incentive to improve safety protocols, correct systemic failures, or admit fault. This undermines the civil justice system’s role in deterring negligence.

2. Discourages Legal Representation

Most personal injury and wrongful death attorneys won’t take sovereign immunity cases unless there’s a non-sovereign party also responsible. Why? Because:

The potential recovery is severely limited.
Government defendants often fight the hardest, spending taxpayer money to drag out litigation.
Even a large jury verdict changes nothing—the cap still applies.

3. Undermines Judicial Economy

Another core principle of civil law is judicial economy—resolving disputes efficiently and avoiding unnecessary litigation. Sovereign immunity caps frustrate this goal. In typical cases, the threat of a high jury verdict encourages settlements. But in cap cases, sovereign defendants often refuse to settle—even in clear-cut cases—because they know they’ll never owe more than the cap, no matter what happens in court.

4. Renders Florida’s Settlement Encouragement Law Toothless

Florida Statute § 768.79 allows plaintiffs to recover attorney’s fees and costs if they obtain a judgment 25% greater than a properly served settlement offer. This statute is highly effective at encouraging reasonable settlements in non-cap cases. But in cap cases, it’s practically meaningless.

For example, even if a jury awards $2 million and the plaintiff is entitled to $350,000 in attorney’s fees under § 768.79, the sovereign still only pays the cap amount. The incentive to settle is lost.

A Notable Exception: Workers’ Compensation

Interestingly, the sovereign immunity cap does not apply in workers’ compensation claims. Government employers can be held accountable for the full value of benefits under Florida’s workers’ comp system. That said, these benefits do not include compensation for pain and suffering—often the largest and most meaningful component of a personal injury or wrongful death claim. Still, sovereign exposure in workers’ comp cases can easily exceed the cap, especially in cases involving long-term disability or death.

It’s Time to Retire the Cap

The sovereign immunity cap is outdated. If it ever served a valid purpose, that time has long passed. In modern America, where governments operate complex institutions like hospitals, schools, and transportation systems, they must be held to the same standard of accountability as private actors. The current law creates two tiers of justice—one for victims harmed by private entities, and a lesser one for those harmed by the government.

A Final Word

If you or a loved one has been harmed due to the negligence of a government entity, speak with a qualified attorney to understand your rights. While sovereign immunity presents serious legal hurdles, it doesn’t mean you’re entirely without options.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Sovereign Immunity Strikes Again — Not Good!!!

Jeffrey P. Gale, P.A. — Wed, 12 Jun 2024 18:11:49 GMT

We just received a telephone call from a heartbroken mother whose 47-year old daughter died a few years ago after falling into a diabetic coma. A well-being, or safety check, call was made to the local police department a day after the young woman phoned to inform her employer that she wasn’t feeling well. A law enforcement officer went to her home that day, but her parents believe that the officer failed to take appropriate actions as her car was in the driveway and the windows of her home were open even though it was raining. The officer did not make contact with the woman or attempt to go into the home. She was found deceased in her home two days later. The mother believes her daughter was incapacitated but alive at the time of the safety call and could have been rescued if she had been discovered then and emergency care rendered.

Case law supports the bringing of a lawsuit against the police department. Unfortunately, sovereign immunity makes it a case that few, if any, lawyers are willing to undertake. We were not the first lawyers the mother called. The others turned her down. So did we. The reason why is because the risks and costs associated with litigating the case far outweigh the potential recovery of $200,000. Regardless of a case’s merit, because of sovereign immunity and the relatively minor consequence of a loss, government entities tend to fight every claim hard to discourage otherwise legitimate efforts.

A case against the police department could be brought under the so-called common law “undertaker’s doctrine:”

[i]n every situation where a man undertakes to act, or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care…. [E]ven “where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case.“

Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896 (1932) (citations omitted) (emphasis supplied) (citing 1 Thomas A. Street, Foundations of Legal Liability 92 (1906)) (quoting Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 506 (1906)). In Union Park Memorial Chapel v. Hutt, 670 So.2d 64 (Fla.1996), the Florida Supreme Court reasoned:

It is clearly established that one who undertakes to act, even when under no obligation to do so, thereby becomes obligated to act with reasonable care. See Slemp v. City of North Miami, 545 So.2d 256 (Fla.1989) (holding that even if city had no general duty to protect property owners from flooding due to natural causes, once city has undertaken to provide such protection, it assumes the responsibility to do so with reasonable care); Banfield v. Addington, 104 Fla. 661, 667, 140 So. 893, 896 (1932) (holding that one who undertakes to act is under an implied legal duty to act with reasonable care to ensure that the person or property of others will not be injured as a result of the undertaking); Kowkabany v. Home Depot, Inc., 606 So.2d 716, 721 (Fla. 1st DCA 1992) (holding that by undertaking to safely load landscaping timbers into vehicle, defendant owed duty of reasonable care to bicyclist who was struck by timbers protruding from vehicle window); Garrison Retirement Home v. Hancock, 484 So.2d 1257, 1262 (Fla. 4th DCA 1985) (holding that retirement home that assumed and undertook care and supervision of retirement home resident owed duty to third party to exercise reasonable care in supervision of resident’s activities). As this Court recognized over sixty years ago in Banfield v. Addington, “[i]n every situation where a man undertakes to act, … he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured.” 104 Fla. at 667, 140 So. at 896….

Voluntarily undertaking to do an act that if not accomplished with due care might increase the risk of harm to others or might result in harm to others due to their reliance upon the undertaking confers a duty of reasonable care, because it thereby “creates a foreseeable zone of risk.” McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992); Kowkabany, 606 So.2d at 720-21….

Id. at 66-67 (emphasis supplied) (quoting Restatement (Second) of Torts § 324A (1965) in omitted portion).

The “undertaker’s doctrine” applies to both governmental and nongovernmental entities. Clay Elec. v Johnson, 873 So.2d 1182, 1186 (Fla., 2003).

It is undisputed that the police department affirmatively and specifically undertook to check on the 47-year old woman. Friends and family reasonably relied on law enforcement to do so responsibly. If the case proceeded to trial, challenging questions regarding the reasonableness of law enforcement’s efforts and whether it would have made a difference will be asked among others.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. // Sovereign Immunity (“The King can do no wrong”) Harms We the People

Jeffrey P. Gale, P.A. — Sat, 14 Oct 2023 16:29:05 GMT

One of the primary public policy reasons for having a robust civil justice system that is able to exact full compensatory damages from negligent actors is to encourage safe conduct. Short of criminal punishment, nothing motivates people and corporations to act responsibly more than the threat of losing money.

Sovereign Immunity is a legal concept applied in monarchies and constitutional monarchies such as the United Kingdom, Japan, Jordan, and the Netherlands, to make the sovereign or state immune from civil suit or criminal prosecution. It is derived from the Latin maxim Rex non potest peccare, meaning “the king can do no wrong.” Florida has enacted a modified version of sovereign immunity in the area of civil law involving personal injuries and wrongful death.

Under Florida civil law, people and companies who are not protected by sovereign immunity can be held accountable up to the full measure of the damages caused by their negligence. Those damages can include pain and suffering, medical expenses, and loss of income. In cases involving serious injuries or the loss of life, the full measure of damages can be in the millions.

Florida’s sovereign immunity law limits the amount of compensation the sovereign can be compelled to pay. Under section 768.28(5)(a), Florida Statutes, the sovereign, described as “the state and its agencies and subdivisions,” is limited to paying $200,000 per individual, $300,000 per claim. In other words, the most a sovereign will ever have to pay in a single case is $300,000. It does not matter how substantial the actual losses are.

This arbitrary sovereign immunity cap defeats the public policy of encouraging safe conduct.

Because of the cap, most personal injury and wrongful death lawyers refuse to accept cases against sovereign entities. Not only is the potential recovery limited, cap defendants tend to put up the biggest fight since it is taxpayer money rather than their own being used to fund the fight.

Some other reasons why lawyers reject cap cases:

Another important public policy is the principle known as “judicial economy.” Essentially, limiting the use of court resources. The sovereign immunity cap defeats this policy. In non-sovereign cases, the defendant can be motivated to settle for a reasonable sum to avoid the potential of having to pay a significantly higher jury verdict. The sovereign cap eliminates this leverage point. Even in cases with clear fault and damages well in excess of the cap, sovereign defendants almost never offer to settle for the full cap amount. This is because they have nothing to lose and often gain by holding out.

Prosecuting any case to a jury verdict is costly and time-consuming. Where the potential recovery is capped no matter what the jury says, it quickly reaches the point where continuing to push forward does not make sense. The sovereign knows this, so it holds out. Even if a jury awards ten or even a hundred times more than the cap, the sovereign cannot be compelled to pay a penny more than the cap amount.

Not even a successful demand for judgment can result in the cap being breached. Under section 768.79, Florida Statutes, a plaintiff can recover attorney’s fees and costs from a defendant if the plaintiff recovers a judgment in an amount at least 25% greater than a settlement offer served in accordance with the statute. In some instances, those fees and costs can amount to hundreds of thousands of dollars. The purpose of the statute is to encourage settlements. The statute works exceedingly well in non-cap cases. In cap cases, it is virtually meaningless. Not even an award under 768.79 can force the sovereign to pay more than the cap amount. If, for example, the jury verdict is $2,000,000 and the 768.79 award is $350,000, the most the sovereign has to pay is $200,000 to any one person and no more than $300,000 if more than one person is involved.

Interestingly, the sovereign immunity cap does not apply in workers’ compensation cases. The sovereign can be held to full account for the benefits available under the workers’ compensation system. However, it should be noted that non-economic damages such as pain and suffering are not available in workers’ compensation cases. This is often the largest damage element of a personal injury or wrongful death case. Nevertheless, the sovereign’s exposure in a workers’ compensation case can be sizeable, well above $300,000.

The sovereign immunity cap has worn out its usefulness, if it ever had any to begin with, in America’s jurisprudential system — Florida is not the only state to employ the concept. It is time for the antiquated concept to be relegated to the dustbin of history.

With all of this said, anyone harmed through the negligence of a sovereign should consult with a lawyer to learn his or her rights. We are in suit now against a non-cap surgeon and the sovereign hospital in which the surgeon caused significant harm to our client performing surgery in the hospital. (We only decided to sue the sovereign because the action is ancillary to our case against the non-sovereign doctor. We would not have filed suit against the sovereign alone.)

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.