sovereign immunity in Florida

2024See Pan-Am Tobacco Corp. v. Dep't of Corr., 471 So. 2d 4 , 5–6 (Fla. 1984) ("We therefore hold that where the state has entered into a contract fairly authorized by the powers granted by general law, the defense of sovereign immunity will not protect the state from action arising from the state's breach of that contract."); see also Fla. Dep't of Transp. v. Schwefringhaus, 188 So. 3d 840, 844 (Fla. 2016) (describing Pan-Am Tobacco as having "found an implied waiver of sovereign immunity for contract claims"); Town of Gulf Stream v. Palm Beach County, 206 So. 3d 721, 726 (Fla. 4th DCA 2016) ("S

2024Res., 339 So. 2d 1113 , 1116–17 (Fla. 1976) (precluding judicial relief against the State in the absence of “legislation waiving the state’s sovereign immunity”); Rabideau v. State, 409 So. 2d 1045, 1046 (Fla. 1982) (requiring “clear and unequivocal” consent from the Legislature to effect a waiver of sovereign immunity); see also Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984) (“In Florida, sovereign immunity is the rule, rather than the exception. . . .”); Univ. of Fla. Bd. of Trs. v. Rojas, 351 So. 3d 1167 , 1170 (Fla. 1st DCA 2022), rev. granted, SC2023-0126, 2023 WL 478

2011Relying on these statements, we conclude that in cases where immunity from suit rather than solely immunity from liability is at issue, our intervention by way of certiorari is appropriate. 3 In reaching this conclusion, we acknowledge that because the nature of the conduct involved determines whether the function being performed “is, by its nature, immune from tort liability,” Trianon, 468 So.2d at 918 , and that “[o]ftentimes, the applicability of the sovereign immunity waiver is inextricably tied to the underlying facts,” Roe, 679 So.2d at 758, a trial on the merits may be required to resol

2009See, e.g., Kaisner, 543 So.2d at 733-34 (holding that the issue of sovereign immunity does not even arise unless a governmental unit otherwise owes a duty of care to the injured party and would thus be liable in the absence of such immunity); but see Miami-Dade County v. Fente, 949 So.2d 1101, 1103-05 (Fla. 3d DCA 2007) (conflating the issue of whether the government owes the plaintiff a duty of care with the separate, distinct issue of whether the doctrine of sovereign immunity shields the government from tort liability); Seguine v. City of Miami, 627 So.2d 14, 17 (Fla. 3d DCA 1993) (same mis

2024Cohens v. Virginia, 19 U.S. 264, 411-12 (1821) (recognizing federal government’s sovereign immunity); Principality of Monaco v. Mississippi, 292 U.S. 313 , 329- 30 (1934) (recognizing state sovereign immunity); Cauley, 403 So. 2d at 381 (“The majority of American states fully embraced the sovereign immunity theory . . . .” (citing Restatement (Second) of Torts § 895B, comment a at 400 (1979))).

2019At common law the doctrine of sovereign immunity was said to originate in the maxim, "[T]he king can do no wrong." Cauley v. City of Jacksonville, 403 So. 2d 379, 381 (Fla. 1981); see also Louis L.

2016Although municipal sovereign immunity was historically less broad than the sovereign immunity afforded to states, “[ijmmunity was always deemed to have existed for legislative, quasi-legislative, judicial and quasi-judicial acts of municipalities.” Commercial Carrier Corp. v. Indian River Cty., 371 So.2d 1010, 1015-16 (Fla. 1979).

2004Nor is Trianon the last word by the Florida Supreme Court on the difficult and, to say the least, convoluted doctrine of sovereign immunity in Florida. [8] Kaisner v. Kolb, 543 So.2d 732 (Fla. 1989) is a more recent effort by the court to clarify how section 768.28, Florida's waiver of sovereign immunity statute, [9] should be interpreted in view of the somewhat disparate approaches of Trianon and Commercial Carrier Corp. v. Indian River *716 County, 371 So.2d 1010 (Fla.1979).

2024Hardee County v. FINR II, Inc., 221 So. 3d 1162 , 1165–66 (Fla. 2017); see Spangler, 106 So. 2d at 424 (noting that “statutes purporting to waive the sovereign immunity must be clear and unequivocal,” and that to enforce the State’s public policy, “[w]aiver will not be reached as a product of inference or implication”).

2020Auth., 106 So. 2d 421, 424 (Fla. 1958) (explaining that “[i]nasmuch as immunity of the state and its agencies is an aspect of sovereignty, the courts have consistently held that statutes purporting to waive the sovereign immunity must be clear and unequivocal” and that the narrow interpretation of waivers of sovereign immunity protect “the public against profligate encroachments on the public treasury”).

2024“Sovereign immunity does not exempt the State from a challenge based on violation of the federal or state constitutions . . . .” Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 721 (Fla. 1994).

2024Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 721 (Fla. 1994) (“Sovereign immunity does not exempt the State from a challenge based on violation of the federal or state constitutions, because any other rule self-evidently would make constitutional law subservient to the State’s will.”).

2024Res., 339 So. 2d 1113 , 1116–17 (Fla. 1976) (precluding judicial relief against the State in the absence of “legislation waiving the state’s sovereign immunity”); Rabideau v. State, 409 So. 2d 1045, 1046 (Fla. 1982) (requiring “clear and unequivocal” consent from the Legislature to effect a waiver of sovereign immunity); see also Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984) (“In Florida, sovereign immunity is the rule, rather than the exception. . . .”); Univ. of Fla. Bd. of Trs. v. Rojas, 351 So. 3d 1167 , 1170 (Fla. 1st DCA 2022), rev. granted, SC2023-0126, 2023 WL 478

2002See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1019 (Fla.1979) (recognizing that in organized society, basic governmental policy decisions must be unhampered by the threat of depletion of the public treasury through tort liability); Circuit Court of Twelfth Judicial Circuit v. Dep’t of Natural Res., 339 So.2d 1113, 1116 (Fla.1976) (deeming protection of the state treasury the primary concern expressed in decisions applying the sovereign immunity doctrine); see also Trianon Park Condo.

2026Florida Rule of Appellate Procedure 9.130(a)(3)(F)(iii) authorizes appellate review of a non-final order that denies a motion that “asserts entitlement to sovereign immunity.” It is well-established that “[d]uty of care is a concept separate and apart from sovereign immunity.” Emerald Coast Utilities Auth. v. Thomas Home Corp., 359 So. 3d 1239 , 1247 (Fla. 1st DCA 2023) (citing Florida Highway Patrol v. Jackson, 288 So. 3d 1179 , 1185 (Fla. 2020), where the supreme court recognized the distinction between the duty of care and sovereign immunity analyses); see also Wallace v. Dean, 3 So. 3d 103

2018The Trianon categories do not, as the Woodson court decided they do, answer the sovereign immunity question. “[I]f a duty of care is owed, it must then be determined whether sovereign immunity bars an action for an alleged breach of that duty.” Pollock v. Fla. Dep’t of Highway Patrol, 882 So. 2d 928, 933 (Fla. 2004). 18 To determine whether a government function was entitled to sovereign immunity, we ask whether it was a policy-making planning or judgmental function, or an operational one. “[C]ertain [quasi-legislative] policy-making, planning or judgmental governmental functions cannot be the

2021In our view, the circuit court was quite correct to deny the County's motion for summary judgment on this record. 32 "Oftentimes, the applicability of the sovereign immunity waiver is inextricably tied to the underlying facts, requiring a trial on the merits." Dep't of Educ. v. Roe, 679 So. 2d 756, 758 (Fla. 1996).

2015See Dep’t of Educ. v. Roe, 679 So.2d 756, 759 (Fla.1996) (explaining that “forcing'the state to wait until a final judginent before appealing the issue of sovereign immunity does not present the same concerns that exist in the area of qualified immunity” because “although the state will have to bear the expense of continuing the litigation, the benefit of immunity from liability, should the state ultimately prevail on the sovereign immunity issue, will not be lost simply because review must wait until after final judgment”); Stephens, 702 So.2d at 527 (dismissing certiorari petition challengin

2009See, e.g., Kaisner, 543 So.2d at 733-34 (holding that the issue of sovereign immunity does not even arise unless a governmental unit otherwise owes a duty of care to the injured party and would thus be liable in the absence of such immunity); but see Miami-Dade County v. Fente, 949 So.2d 1101, 1103-05 (Fla. 3d DCA 2007) (conflating the issue of whether the government owes the plaintiff a duty of care with the separate, distinct issue of whether the doctrine of sovereign immunity shields the government from tort liability); Seguine v. City of Miami, 627 So.2d 14, 17 (Fla. 3d DCA 1993) (same mis

2009See, e.g., Kaisner, 543 So.2d at 733-34 (holding that the issue of sovereign immunity does not even arise unless a governmental unit otherwise owes a duty of care to the injured party and would thus be liable in the absence of such immunity); but see Miami-Dade County v. Fente, 949 So.2d 1101, 1103-05 (Fla. 3d DCA 2007) (conflating the issue of whether the government owes the plaintiff a duty of care with the separate, distinct issue of whether the doctrine of sovereign immunity shields the government from tort liability); Seguine v. City of Miami, 627 So.2d 14, 17 (Fla. 3d DCA 1993) (same mis

2024See Pan-Am Tobacco Corp. v. Dep't of Corr., 471 So. 2d 4 , 5–6 (Fla. 1984) ("We therefore hold that where the state has entered into a contract fairly authorized by the powers granted by general law, the defense of sovereign immunity will not protect the state from action arising from the state's breach of that contract."); see also Fla. Dep't of Transp. v. Schwefringhaus, 188 So. 3d 840, 844 (Fla. 2016) (describing Pan-Am Tobacco as having "found an implied waiver of sovereign immunity for contract claims"); Town of Gulf Stream v. Palm Beach County, 206 So. 3d 721, 726 (Fla. 4th DCA 2016) ("S

2024See Pan-Am Tobacco Corp. v. Dep't of Corr., 471 So. 2d 4 , 5–6 (Fla. 1984) ("We therefore hold that where the state has entered into a contract fairly authorized by the powers granted by general law, the defense of sovereign immunity will not protect the state from action arising from the state's breach of that contract."); see also Fla. Dep't of Transp. v. Schwefringhaus, 188 So. 3d 840, 844 (Fla. 2016) (describing Pan-Am Tobacco as having "found an implied waiver of sovereign immunity for contract claims"); Town of Gulf Stream v. Palm Beach County, 206 So. 3d 721, 726 (Fla. 4th DCA 2016) ("S

2010See Bared & Co., 670 So.2d at 157-58. *1069 Section 768.28(9)(a) Provides Governmental Employees [3] Immunity from Tort Claims Alleging Only Ordinary Negligence Section 768.28 provides a limited waiver of the state's sovereign immunity for tort claims. § 768.28(1), Fla. Stat. The statute authorizes tort claims against the state and its agencies and subdivisions, but limits the state's liability for such claims. § 768.28(5), Fla. Stat. The statute also provides that governmental employees acting within the scope of their employment have immunity from such claims. § 768.28(9)(a), Fla. Stat.; see

2010Section 768.28(9)(a) Provides Governmental Employees 3 Immunity from Tort Claims Alleging Only Ordinary Negligence Section 768.28 provides a limited waiver of the state’s sovereign immunity for tort claims. § 768.28(1), Fla. Stat. The statute authorizes tort claims against the state and its agencies and subdivisions, but limits the state’s liability for such claims. § 768.28(5), Fla. Stat. The statute also provides that governmental employees acting within the scope of their employment have immunity from such claims. § 768.28(9)(a), Fla. Stat.; see also Rupp v. Bryant, 417 So.2d 658, 671 (Fla.

2025See, e.g., County of Brevard v. Miorelli Eng’g, Inc., 703 So. 2d 1049, 1051 (Fla. 1997) (noting the “requirement of Pan Am that there first be an express written contract before there can be a waiver of sovereign immunity”). - 34 - It appears I depart from the majority though when it comes to assessing how specific a plaintiff seeking to overcome a sovereign immunity defense must be.

2024Corp. of Am., Inc., 274 5 So. 3d 1105, 1113 (Fla. 4th DCA 2019) (finding claims for “economic damages framed in counts for declaratory relief, promissory estoppel, tortious interference with contract, and tortious interference with advantageous business relationship” were barred by sovereign immunity because they “lack[ed] a claim for personal injury, wrongful death, or injury or loss of property”); County of Brevard v. Miorelli Eng’g, Inc., 677 So. 2d 32 , 33–34 (Fla. 5th DCA 1996), quashed on other grounds, 703 So. 2d 1049 (Fla. 1997) (holding claim for “[f]raud in the inducement causing onl

2024See, e.g., Sandegren, 397 So. 2d at 659 (affirming writ of mandamus that compelled performance of a ministerial funding obligation under chapter 394, Florida Statutes (1977)); Bill Stroop Roofing, 788 So. 2d at 366–68 (reversing the trial court's application of sovereign immunity to a "direct legislative mandate" set forth in section 489.113(4)(a), Florida Statutes 19 (1994)); see also Arnold v. Shumpert, 217 So. 2d 116, 120 (Fla. 1968) ("[W]aiver of a county's sovereign immunity cannot be accomplished by local law.").

2024See, e.g., Sandegren, 397 So. 2d at 659 (affirming writ of mandamus that compelled performance of a ministerial funding obligation under chapter 394, Florida Statutes (1977)); Bill Stroop Roofing, 788 So. 2d at 366–68 (reversing the trial court's application of sovereign immunity to a "direct legislative mandate" set forth in section 489.113(4)(a), Florida Statutes 19 (1994)); see also Arnold v. Shumpert, 217 So. 2d 116, 120 (Fla. 1968) ("[W]aiver of a county's sovereign immunity cannot be accomplished by local law.").

2024See, e.g., Sandegren, 397 So. 2d at 659 (affirming writ of mandamus that compelled performance of a ministerial funding obligation under chapter 394, Florida Statutes (1977)); Bill Stroop Roofing, 788 So. 2d at 366–68 (reversing the trial court's application of sovereign immunity to a "direct legislative mandate" set forth in section 489.113(4)(a), Florida Statutes 19 (1994)); see also Arnold v. Shumpert, 217 So. 2d 116, 120 (Fla. 1968) ("[W]aiver of a county's sovereign immunity cannot be accomplished by local law.").

2024The court further concluded that the government is “required to refund taxes and fees illegally exacted, and the doctrine of sovereign immunity is inapplicable thereto.” Id. at 368 .

2019Id. at 667 (citing Sego v. City of Fernandina Beach, 771 So. 2d 1235, 1235 (Fla. 1st DCA 2000), for the proposition that sovereign immunity does not preclude an action for false arrest); Dickinson v. Gonzalez, 839 So. 2d 709, 713 (Fla. 3d DCA 2003) (citing Lester v. City of Tavares, 603 So. 2d 18, 19 (Fla. 5th DCA 1992), for the proposition that there is no sovereign immunity for false arrest); Thomas v. Fla. Game & Fresh Water Comm’n, 627 So. 2d 541 , 542 (Fla. 2d DCA 1993) (“Sovereign immunity does not bar an action for false arrest.”).

2005See Sego v. City of Fernandina Beach, 771 So.2d 1235, 1235 (Fla. 1st DCA 2000) (holding that the trial court erred in granting summary judgment on the theory that sovereign immunity precluded an action for false arrest); see also Dickinson v. Gonzalez, 839 So.2d 709, 713 (Fla. 3d DCA 2003) (citing Lester v. City of Tavares, 603 So.2d 18, 18 (Fla. 5th DCA 1992), for the proposition that there is no sovereign immunity for false arrest); Thomas v. Fla. Game & Fresh Water Comm'n, 627 So.2d 541, 542 (Fla. 2d DCA 1993) ("Sovereign immunity does not bar an action for false arrest.").

2022NMB contends that City of Key West v. Florida Keys Community College, 81 So. 3d 494 (Fla. 3d DCA 2012) requires affirmance on the sovereign immunity issue.

2019The majority and concurrence have improperly inferred a waiver of Pasco County's immunity from taxation when in fact "[t]he [l]egislature's inaction does not constitute a waiver of sovereign immunity." See City of Key West v. Fla. Keys Cmty. Coll., 81 So. 3d 494, 497-99 (Fla. 3d DCA 2012) (concluding that the State's sovereign immunity from the city's imposition of stormwater utility fees was not waived by inference). "[S]overeign immunity is the rule[] rather than the exception," and "the State enjoys sovereign immunity unless immunity is expressly waived." Id. at 497-98 (quoting Pan–Am Tobac

2024In Florida, the State is the sovereign, see Univ. of Fla. Bd. of Trs. v. Rojas, 351 So. 3d 1167 , 1170 (Fla. 1st DCA 2022) ("Outside of claims brought under the federal or state constitutions, sovereign immunity bars suit against the State."), but the State's sovereign immunity also extends to its subdivisions, see Manatee County, 365 So. 2d at 147 .

2024In Florida, the State is the sovereign, see Univ. of Fla. Bd. of Trs. v. Rojas, 351 So. 3d 1167 , 1170 (Fla. 1st DCA 2022) ("Outside of claims brought under the federal or state constitutions, sovereign immunity bars suit against the State."), but the State's sovereign immunity also extends to its subdivisions, see Manatee County, 365 So. 2d at 147 .

2024See Buck v. McLean, 115 So. 2d 764, 765 (Fla. 1st DCA 1959) (“County boards of public instruction are agencies of the State . . . .” (citing Bragg v. Bd. of Pub.

1978See Buck v. McLean, 115 So.2d 764 (1 D.C.A.

2026See City of Miami v. Robinson, 364 So. 3d 1087 , 1091 (Fla. 3d DCA 2023) (“Much like subject matter jurisdiction, sovereign immunity . . . can be raised at any time.”); State, Dep’t of Highway Safety & Motor Vehicles, Div. of Highway Patrol v. Kropff, 491 So. 2d 1252 , 1254 n.1 (Fla. 3d DCA 1986) (“Sovereign immunity relates to subject matter jurisdiction.

2009Hutchins v. Mills, 363 So.2d 818, 821 (Fla. 1st DCA 1978) (citations omitted), cert. denied, 368 So.2d 1368 (Fla.1979) (table); see also Kropff, 491 So.2d at 1254 n. 1 ("Sovereign immunity relates to subject matter jurisdiction.

2023Therefore, “[i]n any given situation,” either the government or its employee can incur liability, “but not both.” McGhee v. Volusia Cnty., 679 So. 2d 729, 733 (Fla. 1996); see also Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012) (noting that under the statute, if an employee’s act is not within the scope of his employment, “the plaintiff can recover only from the employee, not from the State”).

2019See Keck v. Eminisor, 104 So. 3d 359, 364-66 (Fla. 2012) (discussing Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994), explaining the rationale for allowing interlocutory review because immunity from suit cannot be restored once lost, and directing the rules committee to submit a proposed rule change); see also Fla. Fish & Wildlife Conservation Comm’n v. Jeffrey, 178 So. 3d 460, 465 (Fla. 1st DCA 2015) (dismissing certiorari 7 review of a sovereign immunity claim, recognizing that limited immunity from liability is not immunity from suit, and the benefit of immunity from liability is not lost if r

1992Auth., 399 So.2d 396 (Fla. 1st DCA), review denied, 411 So.2d 383 (Fla. 1981) (narrowly construing the right to access to courts in determining whether the sovereign immunity statute was unconstitutional).

1992Given the number of employees who undoubtedly work for sole proprietors in businesses subject to less regulation than larger corporations, it seems unfortunate that we hold this beneficial limitation of immunity unconstitutional. [14] See Jetton, 399 So.2d at 398 (emphasizing that the sovereign immunity statute, while restricting some causes of action, "enhance[d] overall" liability).