Claims Against a Government Agency for a Road Defect

Attorney Answer

Maybe — but the clock is the first problem, not the pothole. A claim against a government road agency has a presuit notice requirement measured in years from the crash, and a January 2021 crash sits close to or past the edge of it. This is a same-week question for a Florida attorney, not a someday question.

A claim against the state, a county, a city or another public body runs through Florida's sovereign immunity statute, Fla. Stat. § 768.28. That statute waives immunity for negligence, but only on its own terms, and the first term is written notice. Section 768.28(6)(a) provides: "An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, county, or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing." Notice and denial are conditions that come before a lawsuit, not steps you can catch up on afterward.

The same statute limits what a public defendant pays. Under § 768.28(5)(a), the state and its agencies and subdivisions are liable in tort like a private person, but not for punitive damages or prejudgment interest, and not beyond $200,000 to any one person or $300,000 for all claims arising out of the same incident. A judgment above those figures can be entered, but the excess is paid only if the Legislature passes a claims bill.

There is a threshold question underneath all of this: who maintained that stretch of road. State highways, county roads and city streets belong to different agencies, and notice given to the wrong one is not notice. Whether standing water over a pothole was a condition the agency knew about or should have known about, and whether it was the kind of decision the immunity waiver reaches, are the fights that follow.

One more piece of honesty: the agency will argue you should have seen and avoided it. Your crash predates Florida's 2023 change to its shared-fault rule. For accidents before March 24, 2023, Fla. Stat. § 768.81(2) provided: "EFFECT OF CONTRIBUTORY FAULT. — In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant's contributory fault, but does not bar recovery." Under that rule a share of fault reduced a recovery rather than ending it. The Legislature changed that rule in 2023 for later accidents, and which version reaches an older crash is a question for counsel.

What you can do

1. Talk to a Florida attorney about the § 768.28 notice this week — before anything else on this list.

2. Keep the photographs exactly as they are, including the originals with their date stamps, and do not crop, edit or re-save them.

3. Gather the total-loss paperwork, the repair or salvage records, the towing invoice and any insurance correspondence.

4. Ask for a copy of the crash report if law enforcement responded.

5. Find out which agency maintains that road — a public records request to the city or county public works department will usually answer it.

6. Do not sign a release or accept a settlement from any agency or insurer before a lawyer has looked at the notice question.

7. Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Two separate clocks run here. Fla. Stat. § 768.28(6)(a) requires the written presuit notice within three years after the claim accrues — two years where the claim is for wrongful death — and the notice is a condition of ever filing suit. Separately, because your crash was in January 2021, the negligence limitations period was the former four-year period under Fla. Stat. § 95.11, not the two-year period the Legislature adopted for later accidents. This page does not compute your dates and cannot: whether either window is still open depends on facts a Florida attorney needs to see now.