Mark Roman | May 14, 2018 | news
After the horrifying shooting at the South Florida high school in Parkland, families of victims understandably began asking questions. One of the first questions was about why a police officer assigned to the school (“school resource officer”) failed to intervene and stop the bloodshed. While there is still considerable dispute about the events, many families are placing part of the blame squarely with the local sheriff’s department and school board.
When they approached the school board with their claims, the families of the victims got an unpleasant surprise. They found out that in Florida, the government has extremely limited liability.
This limitation comes from the ancient legal concept of “sovereign immunity.” It basically means you can’t sue the government unless the government permits it. Like many ancient legal concepts, it is based on a fiction: that the king can do no wrong.
We’re past the idea that the government can do no wrong these days, but its liability is still severely limited. Even for a tragedy like the Parkland shooting, the government’s payment obligation may be capped at only $300,000.
This is probably hard for lay people to believe, but it’s true. Under current Florida law, the most an agency of the government must pay for any one “occurrence” is $300,000. Of course, the government will no doubt argue that the shooting incident was one occurrence. If that argument succeeds, that means – starting with the 17 who died and 17 seriously wounded in the Parkland shooting – compensation of about $9,000 per victim. Of course, that doesn’t include many other people who were not physically injured, but will require mental health care for PTSD and other trauma-related problems.
Sovereign immunity creates problems for less sensational cases as well. Besides the total cap on liability of $300,000, there is a per-person limit of $200,000. That means a person seriously injured through the fault of the government may never be able to get more than that, even if their medical bills or other economic losses are far greater.
The game is even rigged when it comes to legal services. In cases against the government, the government’s liability for attorney fees is restricted. That means the government may be permitted to get uncapped fees if it wins, but a injured person cannot. As a result, many competent lawyers simply refuse to take government cases, because they know they can’t handle them cost effectively or get results which truly help their clients.
There is a narrow exception to the liability cap, but it’s nothing to get excited about. A plaintiff who gets a verdict higher than the liability caps can petition the Florida legislature to pay additional money through a “claims bill” process.
The claims bill gauntlet is highly political and uncertain. Even in the most heartbreaking cases, most claims bills don’t succeed. Those that do can take years or even decades. Most lawmakers feel it is a deeply flawed system, but they’ve never bothered to try and improve it.
Governments try to defend sovereign immunity by arguing that unlimited liability would deplete the public treasury. Granted, that was a legitimate concern hundreds of years ago. It isn’t a legitimate concern today, however, because government agencies can buy insurance just like the rest of us. Liability insurance could cover the larger cases and minimize the drain on taxpayer funds.
It’s also worth pointing out that sovereign immunity doesn’t always save money. The government may shortchange people on their injury or death claims, but then end up having to pay them through public assistance programs. By providing fair compensation, a liability insurance program could prevent injured people and their families from having to turn to government assistance in the first place.
It’s time to rethink sovereign immunity in Florida. Lawyers have been frustrated by it for years, but the Parkland school shooting has illustrated the injustice of it to everyone. Now is the right time to change the law and make it fair by the standards of today.
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