Civil Liability
Can a user file a lawsuit claiming negligence?
It is possible that a library user could file a lawsuit claiming negligence. This would be a very difficult claim to make successfully. In the unlikely event that a negligence claim is successful (see requirements below), state law offers some measure of sovereign immunity for government employees.
To successfully claim negligence, a library user must show that the library:
- Owed a duty of care,
- Breached that duty, and
- The breach caused the user to suffer harm.
Duty of care
There is no statutory or regulatory obligation for public libraries to provide E-Government services. In the absence of duty, a negligence claim fails.
However, as libraries take on the E-Government role, they should be aware of the “undertaker’s doctrine,” described by the Florida Supreme Court. When one undertakes to provide a service to others, whether gratuitously or by contract, the undertaker assumes a duty to act carefully and not put others at an undue risk of harm. The doctrine applies to both governmental and non-governmental entities (Wallace v. Dean, 2009).
Use disclaimers
It is important that the library make it clear, through disclaimers and staff interactions, that the library is assisting users in searching for E-Government resources and not offering advice.
Make it clear that the library is not responsible for accurate choices or successful transmission of forms. See Sample Language.
If the library signs an agreement to provide services, the terms of the agreement are controlling. See further discussion of Partnership Agreements.
Breach
If a duty is found, the library user must still show that the library breached its duty. Perhaps a user will claim that the wrong agency/form was chosen, that a form was filled out incorrectly, that the transmission failed (i.e., the E-Government department did not receive the filled-in form, etc.).
Libraries should make it clear that they leave the choice of form, website, etc. to the user.
If a library chooses to help users fill out the form, they should ensure users are supplying all of the answers.
Users must be responsible for reviewing the completed form.
Library staff should never click an e-signature link. Users should also be responsible for transmitting the form (clicking “SEND”).
A common error is for a user to fill out the form, save it, but not click a SEND button. Library staff may help show users this step, but the ultimate responsibility is with the user, and disclaimers to that effect can be helpful.
A library user might also claim that sensitive information has been compromised.
Library policy should state that staff will not type in social security numbers, drivers license numbers, credit card numbers, passwords, etc. Library staff should be advised not to type such data into the computer, and never to keep user files on library computers.
Additionally, users should be warned the library is not responsible for compromises in network security.
Causation of harm
If a breach of duty is found, the user needs to show that the breach caused actual harm. The library staff’s conduct must have “foreseeably and substantially caused the specific injury that actually occurred” (Goldberg v Florida Power & Light, 2005). The Florida Supreme Court has clarified that one can be responsible for harm “if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question." The law does not impose liability for freak injuries that are utterly unpredictable in light of common human experience.
If a library user is denied benefits or similar harm, it seems unlikely that a viable showing of harm caused by the library could be demonstrated. In most if not all denial of benefit cases, there is an administrative remedy, such as a refilling of the forms or an appeals process at the appropriate agency, eliminating a real claim of harm. In the case of the Florida Department of Children and Families, for example, clients who are denied benefits may make a “Fair Hearing Request.”
The U.S. Supreme Court ruled in 1988 that plaintiffs who brought claims directly against the persons who denied them Social Security disability benefits should use the extensive procedural structure for people who are denied benefits (Schweiker v. Chilicky, 1988).
Sovereign immunity and limits on damages
Even if a duty of care is found, local government enjoys some measure of sovereign immunity. Although Florida law waives much of the immunity, local government is not liable for punitive damages, there are caps on damages, and a there is a four-year statute of limitations for bringing negligence claims.
The Florida Supreme Court has gradually widened the local government’s liability, according to a recent report by the National Center for Transit Research, University of South Florida. (National Center 2008) In 1986, the Florida Supreme Court developed criteria to determine sovereign immunity. In Trianon Park Condominium Ass’n v. City of Hialeah, the court distinguished between agency functions that involved the following:
(1) Legislative, permitting, licensing, and executive officer functions (always covered by sovereign immunity)
(2) Law enforcement and public protection (generally covered by sovereign immunity)
(3) Capital improvements and property control functions (same duties as private persons)
(4) Provision of professional, educational, and general services (not covered by sovereign immunity)
Sovereign immunity is available to local governments when the action taken is “discretionary” rather than “operational.” The library’s initial decision to offer E-Government services may be found to be discretionary; the day-to-day operation of library staff answering E-Government queries is more likely to be operational, and not subject to sovereign immunity.
Every claim against the state or one of its agencies or subdivisions (including counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities) for damages for a negligent or wrongful act or omission pursuant to this § 768.28 must be filed within four years after the claim accrues. Florida Statute § 768.28(14)
The state and its agencies and subdivisions are liable in the same manner and to the same extent as a private individual under like circumstances, but liability does not include punitive damages. Damages are capped at no more than $ 100,000 for any single claim, and when totaled with all other claims arising out of the same incident or occurrence, the cap is $ 200,000. Exceptions can be made by going to the Legislature. Florida Statute § 768.28(5)
