A recent decision from the Supreme Court of Florida, Barnett v. State of Florida, Dep’t of Financial Services, No. SC19-87, ___ So. 2d ___, (Fla. Sep. 24, 2020), addressed Florida’s statute on waiver of sovereign immunity in tort actions. Barnett arose from a 2010 mass shooting in which a Florida woman’s estranged husband fatally shot her and four of her children and seriously injured a fifth child.
The personal representatives of the children’s estates sued the State of Florida for wrongful death and negligence. They argued that during an earlier domestic violence investigation, the Department of Children and Families breached multiple nondelegable duties and failed to protect the children from harm, e.g., by failing to adequately follow up on the domestic violence incident, failing to inquire into several domestic disturbance calls placed from the woman’s residence, and failing to inquire into a domestic violence injunction the woman had obtained against the man.
The State raised several defenses, including Florida’s limited waiver of sovereign immunity, codified at section 768.28, limited the aggregate recovery available to $100,000 per person and $200,000 per incident. At the time of the incident, the statute provided in pertinent part as follows:
(1) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. . . .
. . . .
(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.
§ 768.28(1), (5), Fla. Stat. (emphasis added). (State lawmakers increased the cap in 2016, to $200,000 per person and $300,000 per incident.) The personal representatives claimed each shooting qualified as a separate “incident” or “occurrence,” and, therefore, the $200,000 per incident cap did not apply.
The trial court ruled the shooting of each child was a separate incident or occurrence, such that each claim was eligible for the $100,000 per person and $200,000 per claim limitation in the statute. The ruling meant the State could be forced to pay $500,000 if a jury ultimately agreed it was negligent by not protecting the children.
On appeal, the Fourth District Court of Appeal reversed, but certified a question of “great public importance” to the Florida Supreme Court. That is, when multiple claims of injury against a State agency or actor arise from one overall injury-causing event, does the elimination on the waiver of sovereign immunity in section 768.25(5), Florida Statutes, cap the liability of state agencies at $200,000 for all resulting injuries or deaths as claims and judgments “arising out of the same incident or occurrence? The Florida Supreme Court answered the question in the affirmative and held the mass shooting was a single “incident or occurrence” for purposes of section 768.28(5) Florida Statutes and the cumulative liability for all claims of injury resulting from the incident may not exceed the aggregate $200,000-cap set forth in the statute.
The Barnett court reasoned the phrase “same incident or occurrence” is most reasonably understood as referring to the injury-causing event as a whole, not to the smaller segments of time and action that make up the event against each individual victim and “because this is the way that we commonly talk about this type of tragic occurrence – as a single event with multiple victims.” Opinion at 17. The court further reasoned “this reading fits most naturally given the context of subsection (5), which is designed to limit the State’s liability to a set amount for all claims arising out of an ‘incident or occurrence,’ after which all claimants must seek additional compensation from the Legislature.” Id. at 17-18.