Suing the State of Florida: The Florida Tort Claims Act (§ 768.28)
When a government agency, county, city, or public hospital causes an injury, Florida lets you sue — but only on the State's own terms, with strict deadlines and a hard cap on what you can collect.
Under an old idea that "the King can do no wrong," governments historically could not be sued without their consent. Florida partly gave that consent in section 768.28, Florida Statutes, often called the Florida Tort Claims Act. It is a limited waiver of sovereign immunity: you can pursue an ordinary negligence claim against the state and its subdivisions, but the statute controls who you sue, how much notice you must give first, how long you have, and how much you can recover.
★ At a glance
- You sue the agency, not the worker. The government entity is the defendant; the individual employee is usually immune.
- Written notice comes first. You must present a written claim to the agency — and, for state-level claims, also to the Department of Financial Services — before filing suit.
- Wait out the 180 days. You generally cannot file until the agency denies the claim in writing or 180 days pass with no final action.
- Damages are capped. Currently $200,000 per person / $300,000 per incident. Anything above that requires a special "claims bill" from the Legislature.
- No punitive damages, no prejudgment interest against the government, and attorney fees are capped at 25%.
- The law is changing Oct. 1, 2026. New caps and shorter deadlines apply to claims that accrue on or after that date (see the alert below).
Florida raised the caps for the first time in 16 years. In March 2026 the Legislature passed HB 145, which takes effect October 1, 2026. Critically, the figures and deadlines that apply to your case turn on the date your claim accrues (generally the date of the injury), not the date you file.
| If your claim accrues… | Per person | Per incident |
|---|---|---|
| Before Oct. 1, 2026 | $200,000 | $300,000 |
| On/after Oct. 1, 2026 | $350,000 | $500,000 |
HB 145 also tightens the notice and filing deadlines for many claims (the long-standing three-year presuit notice window is being shortened toward eighteen months for ordinary negligence). Because these dates are in transition, confirm the deadline that applies to your specific claim before you rely on any number — a missed deadline ends the case permanently.
The five rules the statute imposes
Limited waiver
The State waives immunity for torts only where a private person would be liable under the same facts.
Presuit written notice
Written claim to the agency (and the Dept. of Financial Services) before suit, then a 180-day wait.
Damage caps
Recovery limited per person and per incident; no punitive damages or prejudgment interest.
Employee immunity
The worker is personally immune unless they acted in bad faith, with malice, or wanton disregard.
Attorney-fee cap
Fees in these cases are limited to 25% of the judgment or settlement.
How you serve suit
Process must be served on the agency head and, for state claims, on the Dept. of Financial Services.
Who counts as "the State"?
The waiver reaches far beyond the agencies in Tallahassee. It covers the State and its agencies and subdivisions — for example, the Department of Transportation, the Department of Children and Families, a state university, a county, a city, a sheriff's office, a school board, a public hospital, and many special districts. Each is a separate legal entity, so identifying the correct defendant (and the correct address for notice) is one of the first things that can make or break a claim.
One important distinction: a claim against a municipality, a county, or the Florida Space Authority requires notice only to that entity — not the extra notice to the Department of Financial Services that state-level claims require.
How a tort claim against the government moves
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Pin down what happened and when
The "accrual" date — usually the date of the accident and injury — starts every clock and decides which caps and deadlines apply. Gather records, photos, witness names, and any incident or police report early.
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Identify the right government entity
Was it a state agency, a county, a city, a school board, a public hospital? The entity you name (and notify) must be the one whose employee caused the harm while on the job.
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Send the written presuit notice
Deliver a written claim to the head of the responsible agency. For state-level claims, send a second written notice to the Department of Financial Services. Keep proof of delivery — this step is the one courts enforce most strictly.
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Wait for denial or the 180-day window
You generally cannot file suit until the agency (or DFS) denies the claim in writing, or 180 days pass with no final disposition. The waiting period is part of the law, not a courtesy.
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File in circuit court within the statute of limitations
If the claim is not resolved, you file a civil complaint in the proper circuit court and serve it as the statute requires. Be mindful of the shorter, transitioning deadlines under the 2026 law.
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If you win above the cap, pursue a claims bill
A court can enter a judgment larger than the cap, but you can only collect the excess if the Legislature passes a special "claims bill" — a separate, often multi-year political process.
The cap is a collection limit, not a verdict limit
A jury can find your damages are $2 million. The judge can enter that judgment. But absent a claims bill, the government only has to pay up to the statutory cap. For a catastrophic injury or a wrongful death, the cap can be a fraction of the real loss.
That single reality drives most strategy in these cases: whether the claim is worth bringing, whether to pursue a claims bill, and whether any non-government defendant (a contractor, a private company, an individual acting outside their job) can also be held responsible without the cap.
What the waiver does not reach
The statute does not turn every government decision into a lawsuit. Courts draw a line between "planning-level" policy choices — how to write a regulation, how to budget, what enforcement priorities to set, which remain immune — and "operational-level" conduct, such as a negligently driven government vehicle or a failure to fix a known dangerous condition, which can be actionable. A narrow but important exception lets liability attach when a government entity knows about a hidden hazard that acts as a trap for the public and fails to warn.
The waiver also does not cover an employee who was acting outside the scope of their job, or who acted in bad faith or with malicious purpose — in those situations the individual may be personally liable, but the agency generally is not.
The most misunderstood point: notice before suit
People assume they can simply hire a lawyer and sue the city or the state. You cannot — not yet. Filing a lawsuit before giving the required written notice and waiting out the statutory period can get the case dismissed, and if the deadline to give that notice has by then passed, the claim can be lost for good.
Two practical traps inside this rule: (1) state-level claims need the extra notice to the Department of Financial Services, not just the agency; and (2) the notice and filing deadlines are shorter than the deadlines for suing a private person — and are getting shorter still under the 2026 changes. When the government is a potential defendant, treat the calendar as the most dangerous part of the case.
Frequently asked questions
Can I sue the police officer or government worker personally?
Usually no. Under § 768.28(9), an individual government employee is immune from suit for acts within the scope of their job. You sue the employing agency instead. The exception is conduct in bad faith, with malicious purpose, or with wanton and willful disregard for safety — in which case the individual can be named, but the agency may not be liable for that conduct.
How much can I actually recover?
For claims accruing before October 1, 2026, the cap is $200,000 per person and $300,000 per incident. For claims accruing on or after that date, the cap rises to $350,000 per person and $500,000 per incident. A court may enter a larger judgment, but the government only has to pay above the cap if the Legislature passes a separate claims bill.
What is a "claims bill"?
It is a special act of the Florida Legislature that authorizes payment of a judgment above the statutory cap. It is a political process — separate from your lawsuit — that can take years and is not guaranteed, even after you win in court.
How long do I have to act?
Tort claims against the government carry shorter deadlines than ordinary claims, and the presuit notice must be given well before any lawsuit. Historically the written claim had to be presented within three years (two years for wrongful death), with a 180-day waiting period before suit. HB 145 shortens several of these windows starting October 1, 2026. Because the exact deadline depends on the type of claim and its accrual date, confirm your specific deadline immediately rather than assuming you have the full window.
Where do I send the written notice?
To the head of the agency responsible for the harm. For claims against the State or a state agency, you must also send written notice to the Florida Department of Financial Services. Claims against a municipality, a county, or the Florida Space Authority do not require the separate DFS notice. Always keep proof of delivery.
Is this the same as small claims court?
No. Small claims court handles modest money disputes, typically up to $8,000, and has its own simplified procedure. A tort claim against the government follows the § 768.28 notice-and-waiting framework and is generally filed in circuit court. They are different tracks with different rules.
This is general legal information, not legal advice. JusticeXpress Florida is not a law firm and is not a substitute for an attorney. Suing a government entity involves strict, shifting deadlines and notice rules under section 768.28, Florida Statutes, and a single missed step can end a claim permanently. Statutory figures and deadlines described here reflect Florida law and the 2026 changes (HB 145) as of publication and may change. Verify current requirements and consult a licensed Florida attorney about your specific situation before acting.