RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0077P (6th Cir.)
File Name: 00a0077p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;
MICHAEL J. STALBOSKY,
Plaintiff-Appellant,
No. 98-6734
v.
>
WILLIAM CHRISTOPHER
BELEW and THREE RIVERS
Defendants-Appellees.
TRUCKING COMPANY,
1
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 96-00038—Joseph M. Hood, District Judge.
Argued: December 7, 1999
Decided and Filed: March 3, 2000
Before: COLE and GILMAN, Circuit Judges; CARR,
District Judge.*
*
The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
2 Stalbosky v. Belew, et al. No. 98-6734
_________________
COUNSEL
ARGUED: Steven G. Bolton, BOLTON LAW OFFICES,
Frankfort, Kentucky, for Appellant. John B. Drummy,
KIGHTLINGER & GRAY, Indianapolis, Indiana, for
Appellees. ON BRIEF: Steven G. Bolton, BOLTON LAW
OFFICES, Frankfort, Kentucky, for Appellant. John B.
Drummy, KIGHTLINGER & GRAY, Indianapolis, Indiana,
Van T. Willis, KIGHTLINGER & GRAY, New Albany,
Indiana, for Appellees.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. On April 27,
1995, William Belew was driving a truck through Kentucky
on behalf of Three Rivers Trucking Co. Belew picked up a
stranded motorist, Myra Stalbosky, at an interstate rest area.
He later raped and murdered her in the cab of his truck.
Michael Stalbosky, the administrator of Myra Stalbosky’s
estate, brought suit against both Belew and Three Rivers. He
alleged that Three Rivers should be held liable for negligently
hiring and retaining Belew because the company knew or
should have known that Belew posed an unreasonable risk to
members of the general public such as Myra Stalbosky. The
district court granted summary judgment against Belew and
awarded a two and a half million dollar judgment to
Stalbosky. As to Three Rivers, however, the district court
granted the company’s motion for summary judgment,
holding that Stalbosky had not raised a genuine issue of
material fact under Kentucky law that would allow recovery
in his favor. For the reasons set forth below, we AFFIRM
the judgment of the district court.
No. 98-6734 Stalbosky v. Belew, et al. 3
I. BACKGROUND
A. Factual background
1. Belew’s criminal history
On February 8, 1991, Belew was convicted of arson in
Weakley County, Tennessee and sentenced to three years in
prison. After serving 90 days, he was released on probation
for the remainder of his term. On September 9, 1991, Patricia
Buchanan, a former girlfriend of Belew’s, swore out a
complaint against him, alleging that he struck her, tied her
feet, and pulled her out of her house by the hair while her
eight year old son watched. Buchanan’s complaint was
subsequently dismissed.
Over three and a half years later, Belew was arrested on a
charge of aggravated assault. According to the complaint,
Belew entered the home of Maureen Revel, another former
girlfriend, in the early morning hours on March 21, 1995.
Belew allegedly tried to force Revel out of her residence, and
placed a gun to her head when she refused. The complaint
states that Belew then attempted to rape Revel, although she
was ultimately able to dissuade him. Upon being arrested,
Belew managed to escape, but was recaptured shortly
thereafter and charged with aggravated assault and escape.
On April 26, 1995, he pled guilty and was sentenced to 11
months and 29 days of incarceration. The majority of the
sentence was suspended, except for 15 days, which were to be
served beginning on August 4, 1995.
On April 27, 1995, the day after his sentencing, Belew took
a driving assignment for Three Rivers, which scheduled him
to make a round trip from Paris, Tennessee to East Sparta,
Ohio and back. Belew pulled over at a rest area on Interstate
71, in Henry County, Kentucky, where he encountered Myra
Stalbosky, an eighteen-year-old motorist who was having car
troubles. Myra Stalbosky then rode with Belew to a truck
stop, where Belew raped and strangled her in his cab. After
his arrest, Belew pled guilty to rape and murder, and is
currently serving a life sentence for those crimes.
4 Stalbosky v. Belew, et al. No. 98-6734 No. 98-6734 Stalbosky v. Belew, et al. 13
2. Belew’s employment history with Three Rivers III. CONCLUSION
Three Rivers first hired Belew in 1991 for part-time work, For all of the reasons set forth above, we AFFIRM the
washing trucks and working in its shop. On February 9, 1994, district court’s grant of summary judgment in favor of Three
Belew was hired as a full-time truck driver. Prior to hiring Rivers.
Belew as a driver, Three Rivers checked with his previous
employer, obtained a copy of his driving record, and
performed a drug screen. According to Three Rivers, none of
these inquiries indicated that Belew was unfit for a position
as a truck driver. On his application form, Belew denied that
he had ever been convicted of a felony, despite his prior
conviction for arson in 1991. Three Rivers has no record of
any complaints against Belew in his capacity as one of its
employees.
Belew was off work between March 12 and April 2, 1995,
during which time he assaulted Revel, was arrested, and was
held in jail for four days. The officers of Three Rivers deny
any knowledge of this incident prior to Belew’s April 27,
1995 road trip. A former Three Rivers employee, however,
claims that it was “common knowledge” at the company that
Belew’s girlfriend had had him arrested and put in jail.
B. Procedural background
On April 26, 1996, Michael Stalbosky, administrator of
Myra Stalbosky’s estate, filed suit against Belew and Three
Rivers for the wrongful death of Myra Stalbosky, with
jurisdiction based on diversity of citizenship. Stalbosky
asserted two claims against Three Rivers—respondeat
superior and negligent hiring and retention. Three Rivers
moved for summary judgment on both claims. On December
20, 1996, the district court dismissed Stalbosky’s respondeat
superior claim, finding that Belew’s actions were not taken in
furtherance of his employment. The district court declined to
dismiss the negligent hiring and retention claim, however, and
ordered the parties to proceed with discovery.
On February 19, 1998, after Stalbosky had received several
extensions to conclude his discovery, Three Rivers requested
a ruling on its summary judgment motion regarding
12 Stalbosky v. Belew, et al. No. 98-6734 No. 98-6734 Stalbosky v. Belew, et al. 5
Belew was not provided, by virtue of his employment, Stalbosky’s negligent hiring and retention claim. The district
with a unique opportunity to commit a crime against court granted Three Rivers’s motion on April 27, 1998,
[Myra Stalbosky]. Indeed, he was in no better position finding no evidence indicating that the officers of Three
than any other member of the general public. [Myra Rivers should have foreseen Belew’s violent behavior.
Stalbosky] was not an invitee or customer of Three Stalbosky filed a timely notice of appeal on December 4,
Rivers, rather, Belew happened upon her as a member of 1998, limiting the issue to the grant of summary judgment on
the general public. his negligent hiring and retention claim.
A federal district court applying Utah law in similar II. ANALYSIS
circumstances granted summary judgment to a trucking
company on the ground (among others) that there was no A. Standard of review
showing that the trucking company knew or should have
known that its drivers commonly picked up hitchhikers or We review de novo the district court’s grant of summary
otherwise closely interacted with members of the general judgment. See, e.g., Smith v. Ameritech, 129 F.3d 857, 863
public. See C.C. v. Roadrunner Trucking, Inc., 823 F. Supp. (6th Cir. 1997). Summary judgment is appropriate when
913, 923 (D. Utah 1993). there are no issues of material fact in dispute and the moving
party is entitled to judgment as a matter of law. See FED R.
In sum, the competent proof presented by Stalbosky would CIV. P. 56(c). In deciding a motion for summary judgment,
at best allow a factfinder to conclude that Three Rivers knew the court must view the evidence and draw all reasonable
or should have known of Belew’s 1991 offenses and his even inferences in favor of the nonmoving party. See Matsushita
earlier commitment to a behavioral health hospital. Unlike Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
the factual scenario in Malorney, however, these facts are (1986). The judge is not “to weigh the evidence and
insufficient to support a conclusion that Three Rivers should determine the truth of the matter but to determine whether
have reasonably foreseen that Belew might assault a total there is a genuine issue for trial.” Anderson v. Liberty Lobby,
stranger while on the road several years later. Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial
exists when there is sufficient “evidence on which the jury
Stalbosky also failed to present evidence that would allow could reasonably find for the plaintiff.” Id. at 252.
a reasonable factfinder to conclude that Three Rivers’s
retention of Belew as a long-haul truck driver placed him in B. Applicable law
a special position to inflict harm on others. This stands in
contrast to the case of Oakley v. Flor-Shin, Inc., 964 S.W.2d As a preliminary matter, Stalbosky argues that the district
438 (Ky. 1998), in which the employee responsible for the court wrongly applied another state’s law of negligent hiring
assault was granted special access to another employee by the and retention rather than Kentucky’s. In a previous
nature of his position. We find nothing in the Oakley decision memorandum order and opinion dated December 20, 1996,
to indicate that the courts of Kentucky would impose liability the district court had indeed looked to jurisdictions outside of
on Three Rivers for Belew’s despicable crime under the Kentucky for guidance, finding no Kentucky decision on
circumstances before us. point. Kentucky only recognized a cause of action for
negligent hiring and retention on March 13, 1998. See Oakley
v. Flor-Shin, Inc., 964 S.W.2d 438 (Ky. 1998). In the
memorandum opinion and order from which this appeal is
6 Stalbosky v. Belew, et al. No. 98-6734 No. 98-6734 Stalbosky v. Belew, et al. 11
taken, however, the district court noted the decision in Oakley D. Negligent hiring and retention—whether Belew’s
and properly applied its holding. employment with Three Rivers posed an
unreasonable risk of harm to others
Because jurisdiction in this case is based on diversity of
citizenship, both the district court and this court are required In the alternative, even if Stalbosky had satisfied the first
to apply the law of the forum state. See Erie R.R. Co. v. element of the Oakley test, he would not have established the
Tompkins, 304 U.S. 64 (1938). We are in effect sitting as a second element—that Belew’s position as a long-haul truck
state appellate court in Kentucky, with the obligation to driver posed an unreasonable risk of harm to members of the
decide the case as we believe the Kentucky Supreme Court general public such as Myra Stalbosky. We may look to this
would do. See Welsh v. United States, 844 F.2d 1239, 1245 alternative ground despite the fact that the district court did
(6th Cir. 1988) (“[O]ur task [in a diversity case] is to make not do so. See City Management Corp. v. United States
our best prediction, even in the absence of direct state court Chem. Co., 43 F.3d 244, 251 (6th Cir. 1994) (finding that this
precedent, of what the Kentucky Supreme Court would do if court may affirm on any grounds supported by the record,
it were confronted with this question.”). even though they may be different than those relied upon by
the district court).
C. Negligent hiring and retention—whether Three
Rivers knew or should have known that Belew was In Oakley, the key Kentucky case on point, the court denied
unfit for his position the employer’s motion for summary judgment in part because
the employer placed a female employee inside a store at night
Under Kentucky law, the two elements of a suit for with another employee whom the employer knew had an
negligent hiring and retention are that (1) the employer knew extensive criminal history, including an arrest for attempted
or reasonably should have known that the employee was unfit rape. See Oakley, 964 S.W.2d at 442. In support of its
for the job for which he was employed, and (2) the decision, the Oakley court cited to numerous negligent hiring
employee’s placement or retention at that job created an and retention opinions from other jurisdictions, in all of which
unreasonable risk of harm to the plaintiff. See Oakley, 964 the dangerous employee was placed in a supervisory position
S.W.2d at 442. The district court granted summary judgment over others or given special access to their locations. See,
in favor of Three Rivers on the grounds that Stalbosky failed e.g., Ponticis v. K.M.S. Inv., 331 N.W.2d 907 (Minn. 1983)
to raise a genuine issue of material fact as to the first element, (tenant raped by manager of apartment complex who had been
i.e., whether Three Rivers knew or reasonably should have entrusted with pass key); J. v. Victory Tabernacle Baptist
known that Belew was unfit for his job as a truck driver. Church, 372 S.E.2d 391 (Va. 1988) (ten-year-old raped by
church employee who was entrusted with keys to church
In its analysis, the district court considered whether Sonny doors and assigned duties that involved contact with
and Randy Crutcher, the owners and managers of Three children); Copithorne v. Framingham Union Hosp., 520
Rivers, had any knowledge of Belew’s prior crimes or violent N.E.2d 139 (Mass. 1988) (hospital patient raped by doctor).
acts before the murder of Myra Stalbosky. It first noted that
Belew had lied on his application, denying any prior felony In contrast, Belew’s position as a long-haul truck driver did
convictions. Turning then to Stalbosky’s evidence, the court not grant him supervisory power over or special access to
found that his supporting affidavits on the key issue of the others, particularly because Three Rivers had an explicit
Crutchers’ knowledge constituted inadmissible hearsay. The policy prohibiting its drivers from picking up hitchhikers. As
district court concluded that “the plaintiff has not come forth Three Rivers observes:
10 Stalbosky v. Belew, et al. No. 98-6734 No. 98-6734 Stalbosky v. Belew, et al. 7
marks omitted)). Thus, the district court’s exclusion of with any affirmative evidence that Three Rivers did in fact
Boggs’s affidavit was erroneous. know, or should have known, of Belew’s unfitness.”
This error by the district court, however, is not cause for Stalbosky argues on appeal that the district court wrongly
reversal. Viewed in the light most favorable to Stalbosky, the excluded as hearsay three affidavits that he tendered in
import of Boggs’s affidavit is that when Three Rivers hired support of his claim. “While this court typically reviews
Belew as a full-time driver in 1994 the company may have evidentiary rulings under an abuse of discretion standard, this
known that (1) Belew had been convicted of arson in court reviews de novo a district court’s conclusion whether
February of 1991, (2) an assault charge had been filed against proffered evidence is inadmissible hearsay.” United States v.
him by a former girlfriend in September of 1991 and Latouf, 132 F.3d 320, 329 (6th Cir. 1997) (citation and
subsequently dropped, and (3) “at a younger age” Belew had internal quotation marks omitted).
been placed in a behavioral health hospital because of a drug
addiction and a hot temper. There is no competent evidence 1. Blakeley’s affidavit
indicating that Three Rivers learned of Belew’s March 21,
1995 arrest for assault—which occurred while Belew was on Philip Blakeley, a private investigator hired by the
leave—prior to its dispatching Belew on the tragic April 27, Stalbosky family to investigate the circumstances surrounding
1995 road trip. Even if Three Rivers was aware of the three Myra Stalbosky’s death, submitted an affidavit recounting an
incidents listed above, we agree with the district court that no interview with Belew that took place on April 10, 1997. In
reasonable juror could conclude from that information that that affidavit, Blakeley related Belew’s statement that Randy
Three Rivers knew or should have known that Belew was and Sonny Crutcher were both aware of his criminal history,
unfit for his job as a long-haul truck driver. but told him not to worry about it and not to list it on his
application.
We find the facts in the present case to be distinguishable
from the unusual facts presented in Malorney v. B & L The district court disregarded this testimony as hearsay. On
Motor Freight, Inc., 496 N.E.2d 1086 (Ill. App. Ct. 1986). appeal, Stalbosky argues that Blakeley’s statement was
In Malorney, a trucking company hired a driver with a history admissible under Rule 801(d)(2) of the Federal Rules of
of violent sex-related crimes, including an arrest only a year Evidence as an admission by Belew, a party-opponent. Belew
before he was hired for aggravated sodomy of two teenage is a party to this action, but the statements that are at issue
hitchhikers. Based on these facts, the Illinois appellate court here were not offered against Belew, but rather against Three
denied the trucking company’s motion for summary judgment Rivers to establish its knowledge of Belew’s prior criminal
in a suit brought by a hitchhiker who was sexually assaulted history. Under Rule 801(d)(2)(A), a party’s statement is
by the driver, holding that material issues of fact existed as to admissible as non-hearsay only if it is offered against that
whether the company was negligent in entrusting a truck with party. The district court therefore properly refused to consider
a sleeping compartment to the driver. In the present case, Blakeley’s affidavit.
there is no comparable evidence demonstrating that Three
Rivers should have reasonably foreseen that Belew was likely
to assault a total stranger while driving for the company.
8 Stalbosky v. Belew, et al. No. 98-6734 No. 98-6734 Stalbosky v. Belew, et al. 9
2. Norsworthy’s affidavit to straighten up and do what was right, so I gave him a
chance.
James Norsworthy, a former driver for Three Rivers, stated
in an affidavit dated March 2, 1998 that “[i]t was common In Boggs’s affidavit, he also quotes Crutcher as saying that
knowledge at the company that Chris’ girlfriend had him Belew’s father, Mike Belew, had told him that at a younger
arrested and put in jail.” The district court disregarded this age, Chris Belew had been placed in a behavioral health
part of Norsworthy’s testimony on the grounds that it was hospital because of a drug addiction and a hot temper that
inadmissible hearsay. In the alternative, the trial court held resulted in him attacking other people.
that Norsworthy’s statement “does not definitively show that
Sonny and Randy Crutcher . . . knew that Belew had been The district court excluded this affidavit as well, ruling
arrested or that he had a violent disposition.” Id. without elaboration that it constituted inadmissible hearsay.
Stalbosky argues on appeal that Boggs’s affidavit is not
Norsworthy’s statement is ambiguous. It is unclear whether hearsay because it relates statements made by Sonny Crutcher
his statement is founded on a belief that others in the company that are admissions of a party-opponent under Rule
knew of Belew’s arrest, which would be inadmissible, or his 801(d)(2)(D) of the Federal Rules of Evidence. That rule
personal recollections of others actually speaking about the allows for the admission of statements by a party’s agent,
arrest, which might be admissible. Regardless of whether concerning a matter within the scope of his agency or
Norsworthy’s statement is admissible, however, it is too employment, made during the existence of the relationship.
conclusory and vague to successfully counter a motion for
summary judgment. See Anderson v. Liberty Lobby, Inc., 477 Three Rivers responds by contending that Sonny Crutcher
U.S. 242, 256-57 (1986) (holding that, to withstand a motion retired from Three Rivers in February of 1995, and was
for summary judgment, a plaintiff must adduce some concrete therefore was not speaking as an agent of the company at the
evidence on which a reasonable juror could return a verdict in time of the interview in July of 1995. The evidence on the
his favor). Moreover, as the district court aptly noted, even if record does not support Three Rivers’s contention. Sonny
it is assumed that Belew’s arrest was “common knowledge” Crutcher remains the chairman of the board of Three Rivers
at Three Rivers, that does not necessarily indicate that the and he described himself in September of 1997 as being only
owners of Three Rivers were aware of this fact. “semi-retired.” Boggs’s recollection of Crutcher’s comments
is therefore non-hearsay and is admissible as the admission of
3. Boggs’s affidavit a party-opponent.
Glenn Boggs, a detective with the Kentucky State Police, Furthermore, Boggs’s statements are also not hearsay
was the lead investigator in the homicide of Myra Stalbosky. because they were not offered to prove the truth of the matter
As part of his investigation, he interviewed Sonny Crutcher in asserted—that Belew had served time in prison or fought with
July of 1995. Boggs stated in a November 15, 1996 affidavit former girlfriends—but solely to prove that Sonny Crutcher
that Crutcher told him the following: was aware of Belew’s history. See United States v. Branham,
97 F.3d 835, 851 (6th Cir.1996) (“[I]f the significance of a
I am ashamed at what has happened. This is what statement lies solely in the fact that it was made, rather than
happens when you try to give someone a chance. Chris’s in the veracity of the out-of-court declarant’s assertion, the
dad told me that Chris had served some time in prison statement is not hearsay because it is not offered to prove the
and had been in quite a bit of trouble over fighting with truth of the matter asserted.” (citation and internal quotation
his former girlfriends. Chris’s dad said Chris was trying
Stalbosky v. Belew
Combined Opinion