Goldschmidt v. Holman, 571 So. 2d 422 (Fla. 1990). · Go Syfert
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Goldschmidt v. Holman, 571 So. 2d 422 (Fla. 1990). Cases Citing This Book View Copy Cite
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cited 5× by 5 distinct cases, 2006–2023 · 3 courts→ Stable · (1) acknowledgment by the principal that the agent will act for him, (2) the agent's acceptance of the undertaking, and (3) control by the principal over the actions of the agent. at p. 424 ✓
cited 5× by 5 distinct cases, 1999–2013 · …two separate and distinct causes that operate contemporaneously to produce a single injury. at p. 424 ✓
cited 3× by 3 distinct cases, 2014–2019 · 3 courts↓ Fading · …essential to the existence of an actual agency relationship is (1) acknowledgment by the principal that the agent will act for him, (2) the agent's acceptance of the undertaking, and (3) control by the principal over the actions of the agent. ✓
199 citation events (146 in the last 25 years) across 14 distinct courts.
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Archer Western Construction LLC v. Obsidian Specialty Insurance Company
N.D. Ill. · 2025 · quote attribution · 1 verbatim quote · confidence high
a defendant could not be found liable under a theory of vicarious liability that was not specifically pled.
examined Cited as authority (verbatim quote) Gafoor Jaffer and Nina Jaffer v. Chase Home Finance, LLC (2×) also: Cited as authority (rule)
Fla. Dist. Ct. App. · 2015 · quote attribution · 1 verbatim quote · confidence high
because the complaint failed to set forth any ultimate facts that establish either actual or apparent agency or any other basis for vicarious liability, the plaintiffs below did not allege any grounds entitling them to relief.
discussed Cited as authority (rule) Eric Laurice Smith v. State of Florida
Fla. Dist. Ct. App. · 2025 · confidence medium
“Generally, a trial court’s decision to give or withhold a proposed jury instruction is reviewed for an abuse of discretion.” Vila v. State, 74 So. 3d 1110, 1112 (Fla. 5th DCA 2011). “[D]ecisions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error.” Coday v. State, 946 So. 2d 988, 994 (Fla. 2006) (quoting Goldschmidt v. Holman, 571 So. 2d 422, 425 (Fla. 1990)).
cited Cited as authority (rule) Noshirvan v. Couture
M.D. Fla. · 2024 · confidence medium
Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla. 1990).
discussed Cited as authority (rule) NGUYEN v. PERSPECTIVE GLOBAL, LLC, HOOKS
Fla. Dist. Ct. App. · 2024 · confidence medium
Asphalt Co. v. Bob's Barricades, Inc., 22 So. 3d 697, 699 (Fla. 3d DCA 2009) ("Florida law is clear that in order to pursue a vicarious liability claim, the claimant must specifically plead it as a separate cause of action." (citing Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990))).
discussed Cited as authority (rule) Jiangmen Benlida Printed Circuit Co., Ltd. v. Circuitronix, LLC
S.D. Fla. · 2023 · confidence medium
Indeed, as Benlida itself points out, to establish liability based on the actions of an agent, a plaintiff would have to show: “(1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.” Goldschmidt v. Holman, 571 So. 2d 422, 424 (Fla. 1990).7 Benlida fails to point to any allegations in the complaint that would support any one of these 7 There appears to be no dispute that Florida law applies to this litigation based on a governing-law provision in the parties’ agr…
discussed Cited as authority (rule) NORTH LAUDERDALE SUPERMARKET, INC. d/b/a SEDANO'S SUPERMARKET 35 v. LUZ PUENTES and JAIRO GARCIA
Fla. Dist. Ct. App. · 2021 · confidence medium
“A trial court abuses its discretion when it gives an instruction that is ‘reasonably calculated to confuse or mislead’ the jury.” Id. (quoting Goldschmidt v. Holman, 571 So. 2d 422, 425 (Fla. 1990)).
cited Cited as authority (rule) Amerisure Insurance Company v. Seneca Specialty Insurance Company
S.D. Fla. · 2020 · confidence medium
Asphalt Co., Inc. v. Bob’s Barricades, Inc., 22 So. 3d 697, 699 (Fla. 3d DCA 2009) (citing Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990)).
cited Cited as authority (rule) PHILIP MORRIS USA INC. v. BERNICE MCCALL
Fla. Dist. Ct. App. · 2017 · confidence medium
Goldschmidt v. Holman, 571 So. 2d 422, 425 (Fla. 1990) (quoting Fla. Power & Light Co. v. McCollum, 140 So. 2d 569, 569 (Fla. 1962)).
discussed Cited as authority (rule) Debose v. University of South Florida
M.D. Fla. · 2016 · confidence medium
As a result; Count XII is subject to dismissal with prejudice. 8.Count XIX: Vicarious Liability (both Defendants) Under Florida law, vicarious liability “is a separate cause of action that must be specifically pled in the complaint.” Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990).
discussed Cited as authority (rule) North Broward Hospital District d/b/a Broward General Medical Center Barry University, Inc. Eleidy Miedes, SRNA Rob Alexander, M.D. Anesco North Broward, LLC and Edward Punzalan, CRNA v. Susan Kalitan
Fla. Dist. Ct. App. · 2015 · confidence medium
Generally, a defendant cannot “be found liable under a theory of vicarious liability that was not specifically pled.” Goldschmidt v. Holman, 11 571 So. 2d 422, 423 (Fla. 1990) (relying on Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126 (Fla. 1985)); see also Gen.
discussed Cited as authority (rule) North Broward Hospital District v. Kalitan
Fla. Dist. Ct. App. · 2015 · confidence medium
“A trial court is accorded broad discretion in formulating appropriate jury instructions and its decision should not be reversed unless the error complained of resulted in' a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury.” Barton Protective Servs., Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999). ■ Generally, a defendant cannot “be found liable under a theory of vicarious liability that was not specifically pled.” Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990) (relying on Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1…
discussed Cited as authority (rule) Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A. (2×)
11th Cir. · 2015 · confidence medium
Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990).
cited Cited as authority (rule) Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A.
11th Cir. · 2014 · confidence medium
Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990).
discussed Cited as authority (rule) Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A. (2×)
11th Cir. · 2014 · confidence medium
Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990).
cited Cited as authority (rule) King Cole Condominium Ass'n v. Mid-Continent Casualty Co.
S.D. Fla. · 2014 · confidence medium
Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990); Gen.
discussed Cited as authority (rule) Philip Morris USA, Inc. v. Tullo (2×)
Fla. Dist. Ct. App. · 2013 · confidence medium
Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990).
cited Cited as authority (rule) Kehoe v. Garemore
Fla. Dist. Ct. App. · 2013 · confidence medium
Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990).
discussed Cited as authority (rule) South Florida Coastal Electric, Inc. v. Treasures on the Bay II Condo Ass'n (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2012 · confidence medium
Because the complaint failed to set forth any ultimate facts that establish either actual or apparent agency or any other basis for vicarious liability, the Holmans did not allege any grounds entitling them to relief. 571 So.2d at 423 (emphasis added).
discussed Cited as authority (rule) Cliff Berry, Inc. v. State
Fla. Dist. Ct. App. · 2012 · confidence medium
STANDARD OF REVIEW “The decision on whether to give a particular jury instruction is within the trial court’s discretion, and, absent ‘prejudicial error,’ such decisions should not be disturbed on appeal.” Card v. State, 803 So.2d 613, 624 (Fla.2001) (quoting Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990)); see also Coday v. State, 946 So.2d 988, 994 (Fla.2006).
discussed Cited as authority (rule) K.R. Exchange Services, Inc. v. Fuerst, Humphrey, Ittleman, PL
Fla. Dist. Ct. App. · 2010 · confidence medium
In so doing, the plaintiff also must comply with Florida Rule of Civil Procedure 1.110(b)(2), which requires that the complaint contain “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” See also Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990); Horowitz, 855 So.2d at 172 .
discussed Cited as authority (rule) Sunnyside Land, LLC v. Sims (In Re Sunnyside Timber, LLC)
Bankr. W.D. La. · 2009 · confidence medium
Florida law imposes three requirements for the creation of an agency relationship: “(1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.” Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990) (quoting Restatement (Second) of Agency § 1 (1975)).
cited Cited as authority (rule) H & H ELEC., INC. v. Lopez
Fla. Dist. Ct. App. · 2007 · confidence medium
Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990).
cited Cited as authority (rule) Cds Holdings I v. Corporation Co. of Miami
Fla. Dist. Ct. App. · 2006 · confidence medium
Triana v. FI-Shock, Inc., 763 So.2d 454, 457-58 (Fla. 3d DCA 2000) (citing Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990)).
discussed Cited as authority (rule) Coday v. State (2×)
Fla. · 2006 · confidence medium
This Court has held that "[d]ecisions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error." Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990).
discussed Cited as authority (rule) International Alliance of Theatrical Stage Employees v. International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators Holding Co. (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2005 · confidence medium
Triana v. Fi-Shock, Inc., 763 So.2d 454 (Fla. 3d DCA 2000) (citing Goldschmidt, v. Holman, 571 So.2d 422, 425 (Fla.1990)).
cited Cited as authority (rule) Ryder TRS, Inc. v. Hirsch
Fla. Dist. Ct. App. · 2005 · confidence medium
Id. at 425 (citation omitted).
cited Cited as authority (rule) Golian v. Wollschlager
Fla. Dist. Ct. App. · 2005 · confidence medium
E.g., Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990); Howell v. Winkle, 866 So.2d 192, 197 (Fla. 1st DCA 2004) (citing Goldschmidt ).
cited Cited as authority (rule) Howell v. Winkle
Fla. Dist. Ct. App. · 2004 · confidence medium
Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990).
discussed Cited as authority (rule) Morton Roofing, Inc. v. Prather (2×)
Fla. Dist. Ct. App. · 2003 · confidence medium
The defendants maintain that: (1) no instruction on concurring cause should have been given, that such an instruction is warranted only when "two [or more] separate and distinct causes ... operate contemporaneously to produce a single injury," Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990) (emphasis added), and (2) alternatively, the instruction as modified was erroneous and misled the jury.
discussed Cited as authority (rule) EI Du Pont De Nemours & Co. v. DESARROLLO IND. BIOACUATICO SA
Fla. Dist. Ct. App. · 2003 · confidence medium
Similarly, in Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990), the court noted that where a claim was not pled, "the jury could consider that claim only if evidence supporting it had been admitted without objection and an appropriate motion to amend the pleadings to conform to the evidence had been made pursuant to Florida Rule of Civil Procedure 1.190(b)." (Emphasis added) (citing Arky, Freed, 537 So.2d 561 ).
discussed Cited as authority (rule) Hart v. Stern
Fla. Dist. Ct. App. · 2002 · confidence medium
Florida courts generally define concurring causes as "two separate and distinct causes that operate contemporaneously to produce a single injury." Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990) (citation omitted).
discussed Cited as authority (rule) Penton v. Perez
Fla. Dist. Ct. App. · 2001 · confidence medium
That rule requires that “[a] pleading which sets forth a claim for relief, ... must state a cause of action and shall contain .... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla.1990).
discussed Cited as authority (rule) Card v. State
Fla. · 2001 · confidence medium
Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990); see Alston v. State, 723 So.2d 148, 159 (Fla. 1998) (holding trial court did not abuse its discretion in denying defendant's request for a special jury instruction); James v. State, 695 So.2d 1229, 1236 (Fla.1997) (stating that a trial court has wide discretion in instructing the jury and that the court's rulings on the instructions given to the jury are reviewed with a presumption of correctness).
discussed Cited as authority (rule) Triana v. Fi-Shock, Inc.
Fla. Dist. Ct. App. · 2000 · confidence medium
The decision on whether to give a particular jury instruction, or include a special interrogatory on a verdict form, is within the trial court's discretion, and absent *458 "prejudicial error," such decisions should not be disturbed on appeal. [8] See Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990)(stating that "[d]ecisions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error.").
discussed Cited as authority (rule) Metropolitan Dade County v. Glaser
Fla. Dist. Ct. App. · 1999 · confidence medium
Although the existence of an agency relationship is usually a question for the trier of fact, see Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla. 1990), citing Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491, 494 (Fla. 1983); see also Ortega v. General Motors Corp., 392 So.2d 40, 43 (Fla. 4th DCA 1980), the evidence presented was not sufficient to create a jury question.
cited Cited as authority (rule) Esancy v. Hodges
Fla. Dist. Ct. App. · 1999 · confidence medium
Concurring causes have been defined as "two separate and distinct causes that operate contemporaneously to produce a single injury." Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla. 1990).
discussed Cited as authority (rule) Sanchez v. Hussey Seating Co.
Fla. Dist. Ct. App. · 1997 · confidence medium
Decisions regarding jury instructions rest within the sound discretion of the trial court, and reversible error is committed when jury instructions are "`reasonably calculated to confuse or mislead' the jury." Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990), quoting Florida Power & Light Co. v. McCollum, 140 So.2d 569 (Fla.1962).
cited Cited as authority (rule) Hagen v. Aetna Cas. and Sur. Co.
Fla. Dist. Ct. App. · 1996 · confidence medium
Under Florida law, "concurring causes are two separate and distinct causes that operate contemporaneously to produce a single injury." Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990).
cited Cited as authority (rule) Noel ex rel. Noel v. North Broward Hospital District
Fla. Dist. Ct. App. · 1995 · confidence medium
Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990).
examined Cited as authority (rule) Klipper v. Govt. Employees Ins. Co. (3×) also: Cited "see"
Fla. Dist. Ct. App. · 1993 · signal: cf. · confidence medium
Cf. Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla. 1990).
cited Cited "see" The Peninsula at St. John's Center Condominium Association, Inc. v. Amerisure Insurance Company
M.D. Fla. · 2025 · signal: see · confidence high
See Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990).
cited Cited "see" Rafer v. Internal Credit Systems, Inc
M.D. Fla. · 2021 · signal: see · confidence high
See Goldschmidt v. Holman, 571 So. 2d 422 , 424 n.5 (Fla. 1990) (listing elements of actual agency).
examined Cited "see" Jessop v. Penn National Gaming, Inc. (4×) also: Cited "see, e.g."
M.D. Fla. · 2019 · signal: see · confidence high
See Goldschmidt v. Holman, 571 So.2d 422 , 424 n.5 (Fla. 1990).
discussed Cited "see" Pedro v. Baber
Fla. Dist. Ct. App. · 2012 · signal: see · confidence high
See Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990) (“Decisions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error.”).
discussed Cited "see" Denton v. Good Way Oil 902 Corp.
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Goldschmidt v. Holman, 571 So.2d 422 , 424 n. 5 (Fla.1990) (holding it essential to existence of agency relationship that principal make representation or acknowledgment of agent’s authority to act); Orlando Exec.
cited Cited "see" JDI HOLDINGS, LLC v. Jet Management, Inc.
N.D. Fla. · 2010 · signal: see · confidence high
See Goldschmidt v. Holman, 571 So.2d 422 , 424 n. 5 (Fla. 1990); State v. Am.
cited Cited "see" Minotty v. Baudo
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990); E.I.
cited Cited "see" General Asphalt Co. Ex Rel. Liberty Mutual Insurance Co. v. Bob's Barricades, Inc.
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990).
cited Cited "see" Wolicki-Gables v. Arrow International, Inc.
M.D. Fla. · 2009 · signal: see · confidence high
See Goldschmidt v. Holman, 571 So.2d 422 , 424 n. 5 (Fla.1990).
Retrieving the full opinion text from the archive…
Mark N. GOLDSCHMIDT, M.D., Petitioner,
v.
Jerri Taletha HOLMAN, et al., Respondents.
75172.
Supreme Court of Florida.
Nov 29, 1990.
571 So. 2d 422
Barkett.
Cited by 149 opinions  |  Published

[*423] Charles Cook Howell, III of Commander, Legler, Werber, Dawes, Sadler & Howell, P.A., Jacksonville, for petitioner.

Eugene Loftin, Jacksonville, for respondents.

BARKETT, Justice.

We have for review Holman ex rel. Holman v. Goldschmidt, 550 So.2d 499 (Fla. 1st DCA 1989), based on asserted conflict with Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla. 1985), and Designers Tile International Corp. v. Capital C Corp., 499 So.2d 4 (Fla. 3d DCA 1986), review denied, 508 So.2d 13 (Fla. 1987).[1] The primary issue presented in this case is whether a complaint charging malpractice against a treating physician for the acts of a "covering" physician must specifically allege the vicarious liability of the treating physician.[2]

On behalf of their daughter Taletha, Jeff and Sandra Holman filed a malpractice action against Dr. Mark Goldschmidt for alleged failure to diagnose and treat Taletha's appendicitis. The alleged incidents of malpractice spanned several days and included events of August 14, 1983, when Dr. Gary Soud was "covering" for Goldschmidt and responded to the Holmans' call in Goldschmidt's absence. The trial court refused to permit the jury to consider whether Goldschmidt was liable for Soud's alleged negligence because the plaintiff's complaint did not specifically allege that Goldschmidt was vicariously liable for Soud's actions. The jury found in favor of Goldschmidt, and respondents appealed. The district court reversed, holding that the complaint did not need to specifically allege that the substitute physician was an agent who committed some of the challenged acts of negligence and that the evidence created a jury question as to whether the substitute physician was an agent of the treating physician. The district court also held that the Holmans were entitled to an instruction on concurring causes, which the trial court refused to give.

The threshold issue presented is whether a principal's vicarious liability for the negligence of another is a separate cause of action that must be specifically pled in the complaint. We find that this issue has already been decided by this Court adversely to respondents in Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla. 1985), in which we held that the defendant could not be found liable under a theory of vicarious liability that was not specifically pled.

Florida Rule of Civil Procedure 1.110(b)(2) requires that "[a] pleading which sets forth a claim for relief ... must state a cause of action and shall contain ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief." In this case, the Holmans would have been entitled to relief against Goldschmidt for the negligence of Soud only through vicarious liability. Thus, rule 1.110(b)(2) required the Holmans to allege Goldschmidt's vicarious liability in the complaint. See Tamiami, 463 So.2d at 1128; Designers Tile, 499 So.2d at 5 (concluding that a separate cause of action for vicarious liability must be pled). Because the complaint failed to set forth any ultimate facts that establish either actual or apparent agency or any other basis for vicarious liability, the Holmans did not allege any grounds entitling them to relief.

[*424] We are not unmindful of the cases cited by the respondents and the district court in Annotation, Necessity of pleading that tort was committed by servant, in action against master, 4 A.L.R.2d 292 (1949), supporting the proposition that agency need not be specifically pled. We find those cases, for the most part, inapplicable to the situation before us. The majority of those cases involve corporate defendants who can commit torts only through their servants or agents, a distinction recognized in the annotation itself. Id. at 296-97 n. 2. Other cases in the annotation involve the liability of an employer for acts of an employee, a relationship not present in this case.[3]

Because no basis for vicarious liability was pled, the jury could consider that claim only if evidence supporting it had been admitted without objection and an appropriate motion to amend the pleadings to conform to the evidence had been made pursuant to Florida Rule of Civil Procedure 1.190(b). See Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla. 1988). The Holmans argue that they did move to amend the pleadings and that the trial court erred in denying the motion. At the charge conference, the Holmans requested a jury instruction on actual agency.[4] The trial court denied the request because the agency claim had not been pled. At that point, the Holmans moved to amend the pleadings to support their request for the actual agency instruction. The trial court denied the motion, stating that no evidence had been presented on this claim. We find that the trial court correctly denied the requested instruction and the motion to amend.

In reversing the trial court's decision to refuse the instruction, the district court correctly noted that the Holmans presented some evidence through one expert that Soud was negligent. However, the Holmans failed to take the necessary next step of alleging and proving a sufficient basis for any relationship that would make Goldschmidt responsible for Soud's actions. Although we agree the existence of an agency relationship is normally one for the trier of fact to determine, see Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491, 494 (Fla. 1983), there was no evidentiary question in this case for the jury to resolve. We agree with the trial court that the evidence reflecting the relationship between Goldschmidt and Soud is insufficient to support either the motion to conform or the instruction on actual agency.[5] Thus the district court erred in reversing the trial court on the issues related to vicarious liability.

The pleading issue does not fully dispose of this case, however, because even if Goldschmidt was not vicariously liable for Soud's actions, the district court found the trial court's failure to instruct the jury on concurring causes was also reversible error.

Concurring causes are two separate and distinct causes that operate contemporaneously to produce a single injury. See Hernandez v. Pensacola Coach Corp., 141 Fla. 441, 193 So. 555 (1940). Florida's standard jury instruction on concurring causes states:

In order to be regarded as a legal cause of [loss] [injury] [or] [damage], negligence need not be the only cause. Negligence may be a legal cause of [loss] [injury] [or] [damage] even though it operates[*425] in combination with [the act of another] [some natural cause] [or] some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such [loss] [injury] [or] [damage].

Fla.Std.Jury Instr. (Civ.) 5.1b. The "Note on Use" following the instruction provides:

Charge 5.1a (legal cause generally) is to be given in all cases. Charge 5.1b (concurring cause), to be given when the court considers it necessary, does not set forth any additional standard for the jury to consider in determining whether negligence was a legal cause of damage but only negates the idea that a defendant is excused from the consequences of his negligence by reason of some other cause concurring in time and contributing to the same damage.

The district court determined that a concurring causes instruction was necessary to advise the jurors that they could still find Goldschmidt liable even if Soud's actions or the appendicitis were a concurring cause of Taletha's injury.[6]

Decisions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error. Prejudicial error requiring a reversal of judgment or a new trial occurs only where "the error complained of has resulted in a miscarriage of justice." § 59.041, Fla. Stat. (1989). A "miscarriage of justice" arises where instructions are "reasonably calculated to confuse or mislead" the jury. Florida Power & Light Co. v. McCollum, 140 So.2d 569, 569 (Fla. 1962).

Under the circumstances presented in this case, we find there was no "reasonable possibility that the jury could have been misled by the failure to give the instruction." Ruiz v. Cold Storage & Insulation Contractors, Inc., 306 So.2d 153, 155 (Fla. 2d DCA), cert. denied, 316 So.2d 286 (1975); see Wilson v. Boca Raton Community Hosp., Inc., 511 So.2d 313, 314 (Fla. 4th DCA), review denied, 519 So.2d 988 (Fla. 1987).

The thrust of the entire trial centered solely upon whether Goldschmidt was negligent in misdiagnosing Taletha's appendicitis. At all times Goldschmidt defended on the ground that he was not negligent. No one argued or presented evidence that any other operative cause was present. Neither Goldschmidt nor the Holmans ever asserted that the preexisting appendicitis caused any part of Taletha's injury. To the contrary, the Holmans' own expert testified that had Goldschmidt not been negligent, Taletha would have been "operated on and [sent] home in a couple of days completely well."

Likewise, there was no evidence or argument to the jury that Soud's alleged negligence was a cause of the injury separate and apart from Goldschmidt's negligence. While the Holmans' expert testified that Soud was negligent, no one testified what effect, if any, Soud's alleged negligence had on Taletha's injury or how it operated in relation to Goldschmidt's alleged negligence.[7] Because the evidence was insufficient to support a concurring causes instruction on either the preexisting appendicitis or Soud's alleged negligence, the district court erred in reversing the trial court's denial of the instruction.

Accordingly, we quash the decision of the First District Court of Appeal and direct the court to reinstate the jury verdict in favor of Goldschmidt. We adhere to the rule of Tamiami Trail Tours, Inc. and approve Designers Tile to the extent it is consistent with this opinion.

It is so ordered.

[*426] SHAW, C.J., and OVERTON, McDONALD, EHRLICH, GRIMES and KOGAN, JJ., concur.

1 We have discretionary jurisdiction. Art. V, § 3(b)(3), Fla. Const.
2 This case was presented solely on the pleading issue. Accordingly, we do not address the question of when or if a covering physician can be the agent of the treating physician.
3 No one has argued, or even suggested, that Soud was an employee of Goldschmidt.
4 Since respondents neither argued nor requested an instruction on apparent agency, we decline to consider its applicability to this case.
5 Essential to the existence of an actual agency relationship is (1) acknowledgment by the principal that the agent will act for him, (2) the agent's acceptance of the undertaking, and (3) control by the principal over the actions of the agent. Restatement (Second) of Agency § 1 (1957). The record is devoid of any evidence to support a finding of the third element.

Although Goldschmidt may have known that the Holmans wanted to hold him liable for Soud's actions, see Holman ex rel. Holman v. Goldschmidt, 550 So.2d 499, 504 n. 4 (Fla. 1st DCA 1989), this cannot excuse the Holmans' failure to appropriately plead or present the necessary evidence to support actual agency.

6 There is some mention in the Holmans' brief that the concurring causes instruction was also applicable to the Holmans' negligence in communicating with Goldschmidt's nurse and in their follow-up care. However, the record shows that the Holmans' negligence was not an issue in this case.
7 We do not suggest that Soud's actions could not be a concurring cause, but simply hold that, in this case, the evidence presented was insufficient to support the instruction.