They’d like to, and some judges say they do, but on behalf of our clients Cutler Rader is zealously and effectively challenging that notion.

“Sovereign immunity” basically means that the state or government cannot commit a legal wrong and is immune from civil suit or criminal prosecution. This idea began many years ago as a common law rule which precluded everyday folk from bringing claims against the King; even if his actions injured them. Many States, including Florida, has softened this rule and allowed for claims to be brought against the State with certain limitations.  Florida law has codified this rule in Statute §768.28 which allows for claims to be brought against the State, for itself and for its agencies or subdivisions, but places a $200,000 limitation ($300,000 if there’s more than one claimant) on the amount recoverable.

Public schools, because they are public entities, are entitled to the sovereign immunity caps.  However, charter schools, which are both public and private entities, are more complicated.  In a recent case handled by our firm, the sovereign immunity rule was presented in an interesting factual twist. Cutler Rader, PL represents a woman who was injured while at a local charter school which was chartered pursuant to Florida Statute §1002.33 et. seq. by the Broward County School Board. The client was working as a volunteer at a book fair in the school and several teachers dropped their entire classes off in the media room and left the children. Up to sixty children (no one knows how many) ran amok in the media room and one crawled under a table, grabbed the ankle of our client and caused her to fall and sustain serious injuries. Suit was brought under several theories of negligence arising from the failure to supervise and control the children against the corporation that ran the charter school; not against the individual teachers or governing body of the charter school.

One of the charter school’s affirmative defenses was a claim that it is entitled to sovereign immunity pursuant to Florida Statute §1002.33(12)(h). This Statute contains an express provision for sovereign immunity limited to certain persons, as follows:

(12)(h) For the purposes of tort liability, the governing body and employees of a charter school shall be governed by s. 768.28. (Emphasis added)

Our argument is essentially that under clear language of the statute, which must be strictly construed, sovereign immunity is  conveyed only to the “governing body” of the charter school and the “employees” of the charter school pursuant to §768.28, but not to the school entity itself. Although charter school corporate entity is separately identified elsewhere in the statute (“A charter school shall organize as, or be operated by, a nonprofit organization” in § 1002.33(12)(i)), that nonprofit corporate entity is not included with the parties identified in §1002.33(12)(h) as being entitled to sovereign immunity. They simply are not mentioned.

At the conclusion of discovery, the defense moved for Summary Judgment on the sovereign immunity issue and not only was the motion denied, but the Court ruled as a matter of law that the defendant was not entitled to sovereign immunity.

That may seem pretty straight forward from reading the statute but other trial level courts had ruled that charter schools are entitled to sovereign immunity.  In addition, the legislature shored-up that ruling.  In a recent amendment to Florida Statute §1002.33 the legislature changed the applicable section to state:

12(h) For the purposes of tort liability, the charter school, including its governing body and employees, shall be governed by section 768.28. This paragraph does not include any for-profit entity contracted by the charter school or its governing body.

Then next question is, to whom does the amended statute apply?  To answer this question, dates are important. Our incident occurred on October 16, 2013. The first version mentioned above was in effect. The amendment to the statute occurred on an effective date of July 1, 2017. It seems straight forward. There’s almost always a “but”, though.

The preamble/introduction to House Bill No. 7069 states, in part, that it is “clarifying provisions relating to charter schools and tort liability.” The Summary Analysis by the Florida House of Representatives, in providing the final bill analysis, states the bill “clarifies that charter schools and their governing boards are subject to the same waiver of sovereign immunity.”

Our position, of course, is that the legislature is not clarifying when it adds an entirely new class or entity to § 1002.33(12)(h), and there are many cases that espouse the general principle that modifying a key term in a statute changes the meaning of that statute:

“When a statute is amended to change a key term or delete a provision, it is presumed the Legislature intended to have a meaning different from that accorded to it before the record inspection or copying.… The Supreme Court of Florida has been stating this principle for almost fifty years. There is a strong presumption that, when the legislature amends a statute, it intends to alter the meaning of the statute.” (Citations omitted)

Statements from case law indicate that when the Legislature makes a substantial and material change in the language of a statute, it is presumed to have intended some specific objective or alteration of law, unless a contrary intention is clear.  However, courts are permitted to consider subsequent legislation as evidence of the legislative intent in construing a statute. It is presumed that in adopting an amendment, the legislature intends to change the meaning of a statute unless a contrary intention is expressed.” On this point, the defense observed that the new statute was simply “clarifying” the law.  We were quick to point out; however, that “legislative intent” is impossible to determine when not a single member of the current legislature also sat when the original statute was drafted in 1982!

Now that the trial court has ruled that as a “matter of law” the Charter School is not covered by sovereign immunity, the defendant has filed a Notice of Appeal. An answer dispositive of the immunity question favorable to our client would mean that all causes of action against charter schools that arose before the statute’s effective date of July 1, 2017 would be open to damage claims without the statutory cap limitations of FSA 768.28. This is a case of first impression under this provision and time will tell if the appeal goes through to a decision.

Cutler Rader, P.L. is located at 1166 W. Newport Center Drive, Suite #308 Deerfield Beach, FL 33442. For more information, call (954) 913-2273. You can also visit our website at www.CutlerRader.com.

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