When pursuing a personal injury or wrongful death claim against a Florida governmental entity, understanding how sovereign immunity applies is critical. One of the most litigated questions under Florida Statute § 768.28—the statute that waives sovereign immunity in limited circumstances—is what constitutes a “separate incident” for purposes of the statutory damages caps. The answer to this question can significantly impact how much compensation a claimant can recover.
The Basics of F.S. 768.28 and Sovereign Immunity
Florida Statutes § 768.28 allows individuals to sue state agencies and subdivisions for tortious conduct, but with strict limitations:
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$200,000 per person and
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$300,000 per incident
These are the maximum amounts a governmental entity can be required to pay unless the Florida Legislature passes a claims bill to authorize additional compensation.
But what if multiple people are injured—or die—as a result of government negligence? Does each injury count as a separate “incident,” or does the cap apply to the event as a whole? That’s where the definition of a “separate incident” becomes a crucial legal question.
What Is a “Separate Incident” Under Florida Law?
Florida courts have developed case law to interpret the phrase “per incident or occurrence,” as used in § 768.28(5). The key inquiry is whether the harm arose from a single act of negligence or multiple acts or events that are separable.
The Leading Case: Florida Department of Health v. McDonald
In Florida Dep’t of Health v. McDonald, 43 So. 3d 785 (Fla. 1st DCA 2010), the court held that multiple claimants injured by the same negligent act (e.g., a single vehicle accident) were subject to the $300,000 “per incident” cap collectively. The court rejected the argument that each person’s injuries should be treated as a separate incident.
This case—and others—support the principle that when a single act of negligence causes injury to multiple people, the damages cap is shared among all claimants.
Examples of a Single “Incident” vs. Multiple “Incidents”
| Scenario | Incident Count | Cap Applies |
|---|---|---|
| A school bus crash injures 12 students | One incident | $300,000 total cap |
| A state employee causes two separate car accidents on the same day | Two incidents | $300,000 per accident |
| A prison fails to treat multiple inmates over months, causing injury | Multiple incidents possible | Fact-specific analysis |
| A state hospital repeatedly misdiagnoses a patient | Could be separate acts | May avoid the cap |
Factors Courts Consider
Courts generally consider these factors when determining whether injuries arise from a single or multiple “incidents”:
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Time and Space: Did the alleged acts happen at the same time and place?
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Continuity: Was there a single uninterrupted chain of events?
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Number of Actors: Were different employees or agents involved in different acts?
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Nature of the Conduct: Was it a repeated failure (e.g., ongoing neglect) or a one-time act?
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Causation: Was there a single cause of the harm, or did separate causes produce distinct injuries?
No single factor is dispositive. Courts often engage in a fact-intensive inquiry to determine whether a case involves one incident or several.
Why This Matters in Personal Injury and Wrongful Death Cases
In cases with multiple injured parties or prolonged negligence, plaintiffs often argue for multiple “incidents” to avoid being constrained by the $300,000 limit. Government defendants, unsurprisingly, argue the opposite.
For example, in a medical malpractice claim against a public hospital where several acts of negligence occurred over time, plaintiffs may be able to show that each negligent act was a separate incident, entitling them to separate caps.
Legislative Claims Bill as an Alternative
If damages exceed the statutory cap and cannot be split into separate incidents, claimants may petition the Florida Legislature to pass a claims bill for additional compensation. However, this process is political, lengthy, and uncertain.
Conclusion
Understanding whether a personal injury claim involves a single “incident” or multiple “incidents” under § 768.28 is critical to assessing case value and legal strategy. Florida courts continue to refine this doctrine, and outcomes are often fact-specific. Personal injury lawyers pursuing cases against government entities must be prepared to litigate this issue aggressively and support their position with factual evidence and legal precedent.
Need Legal Help with a Claim Against a Government Entity?
If you or a loved one has been harmed by the negligence of a Florida public agency, our firm can help you navigate the complexities of sovereign immunity law. Contact us today for a free consultation.
Contact Florida Personal Injury Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Miami Attorney Gonzalez-Sirgo directly at [email protected] or by text at (305) 929-8935.
