Torts - Negligence - Sovereign immunity - Section 768.28(5) limits sovereign immunity waiver to $200,000 when there are multiple claims arising out of the same negligent act committed by state agency - Question certified: When multiple claims of injury or death arise from the same act of negligence committed by a state agency or actor, does the limitation on the waiver of sovereign immunity in section 768.28(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”? -

44 Fla. L. Weekly D221a

Torts — Negligence — Sovereign immunity — Section 768.28(5) limits sovereign immunity waiver to $200,000 when there are multiple claims arising out of the same negligent act committed by state agency — Question certified: When multiple claims of injury or death arise from the same act of negligence committed by a state agency or actor, does the limitation on the waiver of sovereign immunity in section 768.28(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”?

STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES, FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES and CITY OF RIVIERA BEACH, a Florida municipal corporation, Appellants, v. MICHAEL BARNETT, individually, as natural father and guardian of R.B., a minor, and as the Personal Representative of the Estates of DANIEL BARNETT, DIANE BARNETT and BRYAN BARNETT, and LEROY NELSON, JR., as Personal Representative of the Estate of JAVON XAVIER NELSON, a minor, Appellees. 4th District. Case No. 4D17-2840. January 9, 2019. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case Nos. 502012CA004183MBAJ and 502012CA000179MB. Counsel: Sheridan Weissenborn of Dutton Law Group, P.A., Miami, for appellant Department of Financial Services. H.T. Smith of the Law Offices of H.T. Smith, P.A., Coral Gables, and John W. McLuskey of McLuskey, McDonald & Hughes, P.A., Miami, for appellee Michael Barnett. Vincent E. Miller of the Law Offices of Vincent E. Miller, P.A., Delray Beach, for appellee Leroy Nelson, Jr.

ON MOTION TO CERTIFYQUESTION OF GREAT PUBLIC IMPORTANCE(PER CURIAM.) Unfortunately, our state has experienced a number of high-profile mass shootings in the past several years, some of which have led to negligence complaints against state agencies. In our opinion in the instant case, we narrowly construed section 768.28(5), Florida Statutes (2010), to limit the sovereign immunity waiver to $200,000¹ when there are multiple claims arising out of the same negligent act(s) committed by the state agency. However, we acknowledge that a broader reading of the statute could allow a per injury limitation.

Because this issue may continue to arise in the context of mass shootings and other mass injury events, we certify the following question as one of great public importance:

WHEN MULTIPLE CLAIMS OF INJURY OR DEATH ARISE FROM THE SAME ACT OF NEGLIGENCE COMMITTED BY A STATE AGENCY OR ACTOR, DOES THE LIMITATION ON THE WAIVER OF SOVEREIGN IMMUNITY IN SECTION 768.28(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”?

(WARNER, MAY and FORST, JJ., concur.)

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¹The statute was amended in 2016 to increase the cap to $300,000 for all claims or judgments.

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