One of the most difficult and complicated types of cases we encounter as personal injury attorneys in Broward is the slip-and-fall or car-accident claim against a city, county, or state agency. One reason is that before a lawsuit can be filed against the government, claimants must comply with a pre-suit notification process.
The pre-suit notice requirements in Florida cases against the government are outlined in Florida Statute section 768.28, and they are much simpler and less expensive than those one would face in a medical malpractice case against a healthcare provider; that difference shows how our legislature views injury claims against the government as important–but apparently not as vitally important as protecting the rights of doctors and hospitals.
The failure to properly notify a Florida governmental agency of a claim can and often does result in the dismissal of a case. I have found that most personal injury attorneys who are willing to sue a governmental agency are young and inexperienced attorneys, because those claims have a mandatory contingency fee cap of 25% and a damage cap of $200,000 per claim. Many of my readers might think that would be acceptable, and it can be, but it also means that a potential case could go to trial and eventually to an appeal, and cost a lawyer $50,000 to litigate with a maximum fee of $50,000 regardless of how much the case is worth.
I believe that as a result of the above-referenced caps, less experienced and perhaps less attentive lawyers take on such cases and often fail to meet the specific requirements of the notice provisions. I suffered a similar incident in my first year of practice more than twenty years ago. I sued Miami-Dade County on behalf of a woman from the Cayman Islands who was injured after boarding the bus but before making it to her seat, when her bus came to a sudden a stop in the rain, causing her to fall.
I put the County on notice. During the pendency of the pre-suit period, I was never advised that the County believed the notice was defective. I filed suit and litigated the case. It was not until the third day of trial that the County moved to dismiss the case for an alleged defect. This is a typical strategy that I have witnessed over the years. The case was not dismissed, but it was a nerve-racking and educational experience.
This week Florida’s 4th District Court of Appeal resuscitated the case of Joann Aitcheson, who slipped and fell at the Florida Department of Highway Safety and Motor Vehicles (FDHSMV) in Pembroke Pines in 2007. Her slip and fall accident lawyers sent both the FDHSMV and the Department of Financial Services nearly identical letters advising them that the law firm was representing Ms. Aitcheson in a “car accident” rather than a “slip and fall” and providing an incorrect date of birth for her. The lawyers did, however, provide the correct date and location of the incident.
The complaint was ultimately filed in 2011, at which time the FDHSMV moved to dismiss her case. The trial court agreed, and an appeal followed. Thankfully and surprisingly, the appellate court reversed the dismissal and held that while section 768.28 requires that the notice be “construed with strict compliance” and “sufficiently direct and specific to . . . notice of the existence of the claim and demand,” supplying the following information is sufficient:
- Date of incident;
- Location of incident;
- Attestation that an injury was suffered;
- Notification that a claim is being made.
Lastly, the DHMSV argued that her notice was defective because it contained her incorrect date of birth. The appellate court disagreed and ruled that this defect could be cured as long as the correct date of birth and social security were provided before the start of a discovery (depositions and interrogatories), trial, or settlement.
Ms. Aitcheson and her lawyers had dodged a bullet, one that I am familiar with as it nearly hit me two decades ago. I wish them both the very best. This ruling is an important reminder to all personal injury lawyers in Florida to be mindful of the specific-notice requirements when suing any government agency in Florida.
We have represented people in cases against the State of Florida, as well as against municipalities, public schools, prisons, and hospitals; each entity requires strict compliance with these rules. If you have been involved in an accident or been injured by any agent of the government in Florida, email me Spencer Aronfeld or call our Fort Lauderdale accident lawyers for a free initial consultation Toll Free: 866-597-4529. Call today–we are ready to help.