KENNETH SELLERS, ET AL., APPELLANTS,
v.
MIAMI-DADE COUNTY SCHOOL BOARD, APPELLEE
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Kenneth and Sylvia Sellers appealed the dismissal of their negligence lawsuit against Miami-Dade County School Board for an injury Kenneth sustained in 1996. The court affirmed the dismissal because the Sellers failed to provide timely notice of their claim as required by Florida's governmental tort immunity statute, which mandates notice within three years of when the cause of action accrues.
The court held that the Sellers failed to comply with the notice requirement because a cause of action accrues when the injury occurs and damages are sustained, not when wrongdoing is discovered. The Sellers' notice three years and three months after the injury was untimely, and there was no evidence the School Board concealed wrongdoing to toll the limitations period.
[1] A cause of action against a government entity accrues when the injury occurs and the damage is sustained.
[2] Notice of a claim against a government entity must be presented within three years after the claim accrues.
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Join FLexlaw to unlock all legal intelligence“a cause of action accrues when the injury occurs and the damage is sustained”
Establishes the rule for when the statutory notice period begins to run under section 768.28(6), rejecting the discovery rule
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Join FLexlaw to unlock all legal intelligenceKenneth Sellers was injured on February 12, 1996, when a machine he was operating crushed his foot, resulting in the amputation of his toes. He filed …
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RAMIREZ, J.
Kenneth Sellers and Sylvia Sellers appeal the dismissal of their lawsuit against Kenneth Sellers’ employer, appellee Miami Dade County School Board. We affirm because Kenneth Sellers failed to comply in a timely manner with the notice of claim requirement contained in section 768.28(6), Florida Statutes (1996).
Kenneth Sellers was injured on February 12, 1996, when the machine he was operating crushed his foot, resulting in the amputation of his toes. He filed a claim for workers’ compensation and on May 12, 1999, gave the School Board notice of his injury and claim for damages. The Sell-erses then filed a multi-count complaint against the School Board and the manufacturer of the machine on February 10, 2000.
The School Board moved to dismiss the complaint alleging that the Sellerses’ notice of injury and claim for damages to the School Board was untimely. The trial court granted the School Board’s motion with prejudice holding that the Sellerses had failed to give notice to the School Board within three years from the date in which the cause of action accrued.
The Sellerses argue that the trial court improperly dismissed their complaint because the limitations period does not accrue on the date of injury, but on the date the wrongdoing is discovered. The Sell-erses allege that the discovery of wrongdoing occurred after Kenneth Sellers’ injury during the taking of certain depositions in the workers’ compensation proceeding.
Section 768.28(6), Florida Statutes (1996), requires that an action against a government entity not be instituted unless a claim is presented “within three years after such claim accrues.” See Levine v. Dade County School Board, 442 So. 2d 210 (Fla.1983). “[A] cause of action accrues when the injury occurs and the damage is sustained.” Department of Transp. v. Soldovere, 519 So. 2d 616, 617 (Fla.1988). In this case, the Sellerses notified the School Board three years and three months after Kenneth Sellers was injured.
Additionally, the Sellerses proceeded to delay the filing of their lawsuit until almost two years after the discovery of the wrongdoing, despite having obtained the information necessary to discover the wrongdoing on July 17, 1998, during the deposition of Antonio Real. The Sellerses cannot fault the School Board for their own leisurely handling of their claim. The record is also devoid of any evidence that the School Board concealed any wrongdoing subsequent to Kenneth Sellers’ injury so as to toll the limitations period. See Almengor v. Dade County, 359 So. 2d 892 (Fla. 3d DCA 1978).
For these reasons, the trial court properly dismissed the Sellerses’ complaint.
Affirmed.
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Authorities Cited
- Levine v. Dade Cnty. Sch. Bd., 442 So. 2d 210 (Fla. 1983)
- Almengor v. Dade Cnty., 359 So. 2d 892 (Fla. 3d DCA 1978)
- Dep't OF Transp. v. Paige Soldovere, 519 So. 2d 616 (Fla. 1988)