under the “undertaker’s doctrine” where he made a promise Further, the court said that once Goihman promised to fix
to fix the problems in apartment and he managed repairs. the problems in the apartment, and managed the repairs,
In 2012, licensee Richard Goihman, who worked for Fortune he had a duty through the “undertaker’s doctrine” to
International Realty, rented an apartment in Aventura, exercise reasonable care in making the repairs. The court
Florida to Michael and Valerie Muchnick. The Muchnicks found that by not quickly fixing the defects, he failed to
signed a two-year lease agreement to rent the apartment for meet the reasonable care standard. The court stated that
$7,500 a month. During their walk through, the Munchnicks “by undertaking the responsibility for the repairs throughout
pointed out some minor cosmetic issues with the apartment. the time the Muchnicks lived in the apartment, Goihman
Goihman assured them that these issues would be fixed prior ‘assumed a specific, legally recognized duty to act with
to their moving in. However, the cosmetic issues were never reasonable care.’ Pascual v. Fla. Power & Light Co., 911 So.
addressed, and worse, after the Muchnicks moved in, they 2d 152, 154 (Fla. 3d DCA 2005). Goihman repeatedly told
discovered more serious problems, such as water damage [the Muchnicks] that he would take care of the repairs and
and mold. Goihman did not quickly address these problems yet Goihman never resolved the issues”.
either. After they put their child on medication due to the
mold problems, the Muchnicks canceled the lease because This case likely has far reaching implications. It involves a
they believed the apartment was not safe to inhabit. They factual scenario that happens every day. Indeed, seemingly
also sued Goichman for, among other things, negligence. any licensee at some point in their career could be accused
of the kind of inaction that Goihman was accused of. So, to
Goihman sought summary judgment on the negligence avoid being the next Richard Goihman, all licensees would
claim, alleging that: (1) he was acting in the scope of his be well advised
employment with Fortune International Realty, and thus, to
remember
was not a proper party; and (2) he owed no duty to the that
they
Muchnicks. But the appellate court disagreed. The court personally liable
said that Goihman could be held personally liable for his for their actions
actions and inactions, because he personally participated while acting in
in the negligence, which is a tort. “Just because Goihman the scope of their
was acting in the scope of his employment when he rented employment,
the apartment, promised to fix it, and managed the repairs, even if they work
doesn’t mean that he was shielded from personal liability for a company,
under all circumstances. ‘Officers or agents of corporations and that if they
may be individually liable in tort if they commit or participate say
in a tort, even if their acts are within the course and scope going
of their employment. All that needs to be alleged is that the something, then
agent or officer personally participated in the tort, even if the they
complained of action was because of and entirely within the actually do it.
are
they are
to do
need
to
scope of his or her employment.’ Vesta Const. & Design,
L.L.C. v. Lotspeich & Assocs., Inc., 974 So. 2d 1176, 1180
(Fla. 5th DCA 2008) (Lawson, J.)”
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