Fourth DCA says South Florida Fair entity has sovereign immunity: $30 million liability insurance policy cannot be reached beyond $200,000
by Robert Hauser, Esq.
Most of us believe that the South Florida Fair is a secure place to go for both children and adults. But in reality, the state-created corporation that controls and operates the South Florida Fair has diminished incentives to concern itself with public safety, as Widley Joseph recently learned in his lawsuit against the South Florida Fair.
On February 2, 2008, Mr. Joseph was waiting with his children to ride the bumper cars at the South Florida Fair. A group of teenagers approached and demanded that he hand them his watch. He refused, and they attacked him with weapons. The attack caused serious injuries.
Mr. Joseph sued the South Florida Fair, which is actually an entity called “South Florida Fair and Palm Beach County Expositions, Inc.” for providing negligent security. Mr. Joseph alleged that the South Florida Fair negligently permitted dangerous individuals to enter the fairgrounds with weapons. Mr. Joseph contended that he was a business invitee to an attraction. He had an expectation that the premises would be secure from armed robbers. He alleged that the South Florida Fair owed a duty to provide reasonable security on the premises to control, patrol, and guard against criminal activity which had been occurring at or near the vicinity of the Fair.
The South Florida Fair moved to dismiss, contending that it enjoys “sovereign immunity.” In Florida, the state and its subdivisions are partially protected by sovereign immunity, subject to the limitation in section 768.28(5), Florida Statutes. That statute says that neither the state nor its subdivisions are liable to pay any one person more than $200,000 for any given injury claim without the consent of the Legislature, no matter how severe.
The South Florida Fair has a $30 million liability insurance policy. But under subsection 768.28(5), the South Florida Fair argued that it nevertheless has limited liability for the very serious injuries that are possible during and as a result of South Florida Fair activities. The South Florida Fair entity is “an association not for profit incorporated under [Chapter 616] for the purpose of conducting and operating public fairs or expositions.” Florida statutes chapter 616 controls the South Florida Fair’s purpose and activities. It conducts and holds public meetings, and provides facilities for agricultural and industrial exhibitions, public gatherings, cultural activities, and other functions that serve educational, physical, economic, or cultural interests of the public. Section 616.08, Fla. Stat. It can hold up to one public fair each year. Section 616.14(1), Fla. Stat.
The Palm Beach Circuit Court held that sovereign immunity did not apply, thereby exposing the insurance policy to Mr. Joseph’s pending claim. The trial court held that the Fair is subject to private lawsuits and that its exposure may exceed the amount set forth in section 768.28(5), Florida Statutes.
On appeal, the Fourth District reversed. The Fourth District held that the South Florida Fair is on equal footing with the statutorily-created “Florida State Fair” and that both entities are protected by sovereign immunity, including the cap on tort liability. The fact that the Fair has a $30 million liability policy was of no moment. Rather, the insurance company effectively gets the benefit of the $200,000 cap on damages. The opinion may be found here at: https://www.4dca.org/content/download/402133/3448014/file/172816_1709_09052018_09361683_i.pdf
According to the appellate court, Chapter 616 governs the assets of a fair association like the South Florida Fair. “[A]ll money and property of the association shall . . . be and remain perpetually public property[.]” § 616.07(1), Fla. Stat. A fair association can obtain property “for the purpose of public fairs or expositions[.]” § 616.08, Fla. Stat. And the statute governs its use of funds. §§ 616.21-23, Fla. Stat.
The decision is an enormous setback for Mr. Joseph, who will never fully be compensated for his injuries by the South Florida Fair.
Two troubling observations may be made from this tragic case:
First, the South Florida Fair has diminished incentive to make its premises as safe or secure as a private amusement park, shopping mall, or other facility. The public organization that runs the fair faces relatively little exposure for incidents like this one. It enjoys a statutory cap on damages, no matter how significant the injuries caused by its negligence.
Second, as of the date of this incident and litigation, the South Florida Fair was using its publicly controlled money to fund premiums for $30 million of liability insurance. Having that insurance seems like a good thing. But the insurance is not actually available to compensate injured members of the public beyond $200,000, even if damages are caused by the South Florida Fair’s wrongful or negligent actions.
In sum, under the Fourth District’s decision, it does not matter how careless or negligent the South Florida Fair may be: the sovereign immunity cap applies to protect the corporation. A liability insurance policy exists, but it is not available to pay damages in excess of $200,000 for a single injured victim.