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Are you an "Undertaker?"

You may want to think twice before you gratuitously offer to provide a service to another that you never had a duty or obligation to perform because such action may result in the law considering you an “undertaker.” Not an “undertaker” in the ordinary sense of such term but an “undertaker” as such term is specifically defined under the law.

The recent case of Muchnick v. Goiham, 2018 WL 202884 (Fla. 3d DCA 2018) found a realtor to be an “undertaker” and, thus, liable to lessees under the “undertaker’s doctrine” where the realtor voluntarily undertook to fix problems with the apartment the lessees rented despite the fact that he was not the owner of the apartment and he had no other duty to make any repairs in the apartment. The court in Muchnick reiterated the rule that “[w]henever one undertakes to provide a service to others, whether gratuitously or by contract, the individual who undertakes to provide the service - - i.e., the ‘undertaker’ - - thereby assumes a duty to act carefully and to not put others at an undue risk of harm. The undertaker is subject to liability if: (a) he or she fails to exercises reasonable care, which results in increased harm to the beneficiary; or (b) the beneficiary relies upon the undertaker and is harmed as a result.” Moreover, the court in Muchnick found the fact that the realtor was acting within the scope of his employment for his employer at the time of the alleged negligence to be irrelevant as the court stated that “[o]fficers or agents of corporations may be individually liable in tort if they commit or participate in a tort, even if their acts are within the course and scope of their employment.”

Accordingly, when you voluntarily undertake a responsibility, even within the scope of your employment, you may subject yourself to personal to liability for negligence under the “undertaker’s doctrine.” For more information about the imposition of liability and how to protect yourself from such liability, call us to speak with our knowledgeable Florida litigation attorneys at Rosenthal Law Group.

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