Being an Aventura lawyer that sues the Department of Transportation (“DOT”) for construction site injuries, I have been finding that the Florida Legislature is making it increasingly difficult for my clients to bring a lawsuit. However, the Florida Legislature does not make it impossible to sue the DOT.
Just this morning, I was before 11th Judicial Circuit Court of Miami-Dade County Judge Marc Schumacher on a Motion to Dismiss. We had initially filed a Complaint on behalf of our client injured in a tragic car crash involving the express lanes on Interstate 95 northbound in Miami. The accident had occurred on the very first day that the express lanes opened in July 2008, which many remember as being an extremely chaotic day on I-95. Construction was not yet finished when these lanes were opened, and as a result, confusion spread among South Florida drivers. Many car accidents occurred, and naturally, several South Florida lawyers received calls from injured drivers. One of those injured drivers was my client, which ultimately led to us filing a Complaint against the Florida Department of Transportation and several contractors hired by the FDOT to perform work on the 95 Express Lanes Project.
Immediately, without submitting any type of answer to our Complaint, the FDOT filed a Motion to Dismiss on the basis of Sovereign Immunity identified in Florida Statute Section 768.28. Basically, if you are injured in a car accident or construction accident, your lawyer will most likely inform you that the law in Florida prevents lawsuits against the state because of sovereign immunity. But does this mean that the state is immune from all negligent acts?
According to Florida law, the state is immune from acts committed that are defined as “planning level” or “decision-making” functions. For example, if a person is injured in a car accident on a highway in North Miami and their lawyer wants to sue the state of Florida because the road was negligently designed, then the state will be immune — as this falls within the “planning” or “decision” function of the state. However, the Florida Supreme Court does point out an exception to this immunity.
In the landmark case of “Department of Transportation v. Neilson,” the issue of sovereign immunity was directly addressed — which in fact was the very issue argued before Judge Schumacher this morning. The Supreme Court in “Neilson” established an exception for when an injured person may sue the state. So, if an accident occurs and the injured person contends that the state is responsible, then he or she must prove the following elements: (1) governmental entity created a known dangerous condition; (2) that known dangerous condition was not readily observable to the public; and (3) the state failed to provide adequate warning informing the public of this dangerous condition.
Essentially, if the state fails to adequately warn the public of a known dangerous condition that they created, then a person injured in a car accident, construction accident, or any accident for that matter, may bring a lawsuit against the state for negligence. Because of this exception laid down in the “Neilson” case, I was successful in my hearing this morning, thus preventing this very significant I-95 Express Lanes case from being dismissed.
If you or someone you know was injured in an accident involving a governmental entity, then please contact us today.
By: Brandon Stein