Stalbosky v. Belew

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 3, 2000
• Docket: 98-6734
• Status: Published

Opinion

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