sovereign immunity

Public Body is Afforded Sovereign Immunity

Posted by David Adelstein on January 14, 2018
Trial Perspectives / Comments Off on Public Body is Afforded Sovereign Immunity

When it comes to pursuing a claim against a public body in Florida, you need to consider the application of sovereign immunity. This stands for the premise that the “king can do no wrong.”  Sovereign immunity is an important issue and will dictate the types of claims you pursue against a public body, whether you pursue a claim against a public body, and the conditions precedent to pursuing such a claim against a public body.

Public bodies are afforded sovereign immunity with a limited waiver of sovereign immunity set forth in Florida Statute s. 768.28.   The limited waiver of sovereign immunity applies to common law tort claims (e.g., negligence-type claims). See Curcio v. State Dept. of Lottery, 164 So.3d 750, 754 (Fla. 1st DCA 2015). There is no limited waiver of sovereign immunity for statutory claims such as unfair and deceptive trade practices and misleading advertising. See id. (“[S]overeign immunity has not been waived for the unfair and deceptive trade practices and misleading advertising claims….These claims are not common law tort claims subject to the waiver of sovereign immunity in section 768.28, Florida Statutes….”). Ultimately, this means sovereign immunity applies to bar such statutory claims against a public body. See id. (finding that public body was entitled to sovereign immunity for statutory claims of unfair and deceptive trade practices and misleading advertising).

Notwithstanding the above, sovereign immunity does not apply to breach of contract claims against a public body. See id. “[W]here the state [public body] 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.” Pan-Am Tobacco Corp. v. Dept. of Corrections, 471 So.2d 4, 5 (Fla. 1984).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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