Almost thirty years ago, the Florida Legislature exercised its exclusive power to waive sovereign immunity when it adopted Florida Statutes Section 768.28. The statute, modeled on the Federal Tort Claims Act (FTCA), which has been analyzed in federal court opinions, is straightforward in its language. However, several decades of Florida Supreme Court decisions construing Florida’s waiver statute have generated a body of case law so incoherent and confusing that there are no defined legal boundaries of governmental tort liability and there is no clear framework with which to analyze immunity. The Court has effectively transformed the waiver statute to fit the current majority’s ideology.
This Article examines the enigmatic body of government tort law that the Florida Supreme Court has created since the Florida Legislature enacted the waiver statute and explores some of the anomalies, inconsistencies, ironies, and paradoxes surrounding this controversial and volatile area of law. Even before the Florida Legislature enacted the first statutory waiver of sovereign immunity, the extent of government insulation from tort liability was the subject of much debate and criticism, but the Florida Supreme Court has compounded the confusion enormously with conflicting and sometimes irreconcilable decisions. The confusion is the product of a number of factors, including the Court’s initial failure to consider the language of the waiver statute and its federal counterpart, its failure to construe strictly the scope of the waiver statute, its gratuitous adoption of a nebulous and unwieldy implied immunity for discretionary governmental functions, its unnecessary rejection and revival of the public-duty doctrine, and its ever-changing ideology and views concerning the principle of stare decisis.