Jeffrey P. Gale, P.A. // Look Past Native Indian Sovereign Immunity for Private Party Personal Injury Liability

In Florida, Native American tribes operate popular business establishments. On occasion, patrons frequenting the establishments are hurt by dangerous conditions created through negligence.

The U.S. Constitution (Article I, Section 2, Clause 3; Article I, Section 8; The Fourteenth Amendment), treaties, and laws, authorize Native American tribes to govern themselves as sovereign nations within the United States.

Florida’s personal injury and wrongful death laws hold parties accountable for their negligence. As independent sovereign nations, the tribes are not subject to these laws.

Until 2021, when the Seminole Tribe signed a gaming compact with the state of Florida, the tribe could not be forced to pay any damages to individuals hurt on their property. Under the Compact, the Seminoles agreed to be subject to damage awards capped at $200,000 per individual/$300,000 per claim.

The Seminole’s waiver caps are wholly inadequate to compensate for catastrophic injuries and wrongful death. Most lawyers won’t accept cases against the Seminole Tribe. Even with the waiver, it is not worth the time, effort, and expense. Forget about going against a tribe, like the Miccosukees, who haven’t agreed to a waiver.

Our law firm fits this profile.

However, some accidents occurring on tribe property are caused by entities that do not enjoy the benefit of tribal immunity.

Our law firm recently accepted a case resulting from a dangerous condition on a property owned by one of the tribes. The case had been turned down by a national law firm after it learned where our client was hurt. The firm did not bother to consider other options.

Our investigation determined that a private company, one without tribal immunity, had a contract with the tribe to operate and maintain the property. The company had a duty to keep the property reasonably safe. It may have breached the duty.

We are also trying to determine whether any other non-sovereign companies might be responsible. Renovations were made to the property a few years ago. The dangerous condition was created during the process. We believe that the entity which performed the renovations may have been negligent.

Unfortunately, for whatever inexplicable reason, the county in which the accident happened does not make its building records available online. This has forced us to make a formal public records request for the documents to complete our investigation.

The state of Florida and its subdivisions also enjoy sovereign immunity protections. However, unlike the immunity extended to Native American tribes, which is based on the noble and appropriate concept of them being sovereign nations, the sovereign immunity extended to the state of Florida is based on the antiquated and anti-American concept of, “The King can do no wrong.”

Section 13, Art. X of the The Florida Constitution authorizes the Florida Legislature to make laws for bringing suit against the state. The current law on the subject, s. 769.28, Florida Statutes, provides in pertinent part as follows:

Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000.

This is similar to the agreement the Seminole Tribe made in the gaming contract with the state of Florida. The numbers are woefully inadequate to compensate for catastrophic injuries or wrongful death. For this reason, most lawyers don’t sue the state.

However, like in cases involving Native American tribes, there may be a way to circumvent the immunity by identifying a responsible private party.

Section 768.28(9)(a), Florida Statutes provides for sovereign immunity from tort actions for any “officer, employee, or agent of the state or of any of its subdivisions.”  “Thus, limited sovereign immunity is available for private parties involved in contractual relationships with the state if those parties are determined to be acting as agents of the state.” G4s Secure Solutions, 210 So. 3d 92, 94 (Fla. 2nd DCA 2016), citing Plancher v. UCF Athletics Ass’n, 175 So.3d 724, 726 (Fla.2015).  “The determinative factor is the degree of control retained or exercised by the state agency.”  G4s Secure Solutions, 210 So. 3d at 94, citing Plancher, 175 So. 3d at 728 and Stoll v. Noel, 694 So. 2d 701, 703 (Fla. 1997). The determination is highly fact-specific.

CONCLUSION: In cases involving Native American tribes or the state of Florida, efforts should be made to identify the party directly responsible for causing the harm.

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