The Limited Liability of Mass Shootings in Florida

NICHOLAS RITORNATO—The victims and families of the mass shooting at Marjory Stoneman Douglas High School that occurred on Valentine’s Day 2018 were recently dealt a severe blow by the Supreme Court of Florida. On Thursday, September 24, 2020, the Court handed down rulings in two cases, Barnett v. State and Guttenberg v. The School Board of Broward County, that officially set a maximum limit on monetary liability for state agencies in the wake of mass shootings.

Barnett involved claims of wrongful death and negligence against the Florida Department of Children and Families (DCF) following incidents of assault and a subsequent mass shooting. On January 26, 2010, the DCF abuse hotline received a phone call about an incident involving Patrick Dell that occurred in December 2009. Dell “charged at and threatened” his estranged wife, Natasha Whyte-Dell, with a knife, verbally threatened to kill her, and slashed all four tires on her vehicle. DCF conducted an investigation to determine whether Dell threatened the safety of Whyte-Dell and her children following the incident, but concluded that the children were not at significant risk of harm.

In September 2010, just seven months after DCF concluded its investigation, Dell entered Whyte-Dell’s residence, fatally shooting her and four of her children, and severely wounding a fifth child, before committing suicide. Wrongful death and negligence actions were filed against DCF on behalf of the four deceased children and one injured child.

The district court certified a question for the Florida Supreme Court as one of great public importance, asking the following: when multiple claims of injury against a state agency arise from one overall event, “does the limitation on the waiver of sovereign immunity” in Florida law “cap the liability of state agencies at $200,000 for all resulting injuries or deaths as claims and judgments ‘arising out of the same incident or occurrence’?” Ultimately, the Supreme Court of Florida answered the question in the affirmative, holding that the mass shooting committed by Dell was a single “incident or occurrence” under Section 768.28(5) of the Florida Statutes, which limits waiver of sovereign immunity. Thus the “cumulative liability for all claims of injury resulting from the incident may not exceed the aggregate cap of $200,000 set forth in the statute.”

The Court analyzed the history of sovereign immunity in Florida, the plain meaning and past use of the phrase “arising out of the same incident or occurrence,” and precedent in Florida case law to conclude that “same incident or occurrence” is most reasonably understood as referring to the injury-causing event “as a whole, not to the smaller segments of time and action that make up the crime against each individual victim.” The Court noted that its ruling in Barnett does not preclude individual victims from seeking claim bills from the Legislature for compensation from state agencies in excess of the $200,000 sovereign immunity damage caps after court proceedings conclude.

The Florida Supreme Court applied Barnett to Guttenberg, which arose out of the mass shooting at Marjory Stoneman Douglas High School. The Court used Barnett to conclude that the School Board of Broward County, as a state agency, would only be held to the maximum liability under Section 768.28(5) of the Florida Statutes to all victims and families combined if the school board is ultimately found liable for negligence, as the mass shooting was only a single “incident or occurrence,” despite the fact that the shooter killed or injured thirty-four different victims. The only difference between Barnett and Guttenberg is that the statute was amended to increase the maximum liability from $200,000 to $300,000 between the mass shooting involved in Barnett in 2010 and the mass shooting involved in Guttenberg in 2018. Like the victims in Barnett, the victims of the Marjory Stoneman Douglas shooting can still seek claim bills from the Florida Legislature for individual compensation from the School Board of Broward County in excess of the $300,000 sovereign immunity damage caps.

The ruling in Barnett as applied to Guttenberg is a huge compensatory blow to the victims and families of the Marjory Stoneman Douglas shooting. There were thirty-four total victims of the mass shooting; using that number and assuming every victim is individually represented in the lawsuit against the School Board of Broward County, each victim would receive approximately $8,800 in compensation from the School Board. This is also assuming that the victims win the case, receive the maximum total compensation of $300,000, and such compensation is divided equally between each victim. Understandably, the victims and their families feel it is hard to justify this limited compensation as a result of the loss of life or severe injuries occurring in a place where they thought they would be safe.

The Court leaving the door open only for future individual claim bills is also a hard pill to swallow for the victims and their families. A claim bill compensates an individual for injuries or losses occasioned by the negligence of a state agency if it is approved by both chambers of the state legislature. It is a means by which an injured party may recover damages even though the state agency involved may be covered by sovereign immunity. Additionally, claim bills cannot be filed until the victims have exhausted all available judicial and administrative remedies, and there is a four-year statute of limitations on claim bills that begins once the cause for relief occurred. These are just two of the factors that can lead to the claim bill process taking years to complete, if they are ever even granted. Because of the strict limit placed on compensation and the time-consuming claim bills process, the Florida Supreme Court’s rulings in Barnett and Guttenberg could leave the victims and families of mass shootings, whether from past shootings or ones that may occur in the future, feeling unrepresented and uncared for by the Florida legal system in the wake of tragic losses.