Stalbosky v. Belew

• Citation: 205 F.3d 890
• Decision Date: 07 December 1999
• Docket Number: DEFENDANTS-APPELLEES,No. 98-6734,PLAINTIFF-APPELLANT,98-6734
• Parties: (6th Cir. 2000) MICHAEL J. STALBOSKY,, v. WILLIAM CHRISTOPHER BELEW AND THREE RIVERS TRUCKING COMPANY, Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 890

205 F.3d 890 (6th Cir. 2000)

MICHAEL J. STALBOSKY, PLAINTIFF-APPELLANT, v. WILLIAM CHRISTOPHER BELEW AND THREE RIVERS TRUCKING COMPANY, DEFENDANTS-APPELLEES.

No. 98-6734

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 7, 1999

Decided and Filed: March 3, 2000

Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. No. 96-00038--Joseph M. Hood, District Judge.

Steven G. Bolton (argued and briefed), Bolton Law Offices, Frankfort, KY, for Plaintiff-Appellant.

William Christopher Belew, Central City, KY, pro se.

Janet P. Jakubowicz, Greenebaum, Doll & McDonald, Louisville, KY, Samuel A. Day, Van T. Willis (briefed), Kightlinger & Gray, New Albany, IN, John B. Drummy (argued and briefed), Kightlinger & Gray, Indianapolis, IN, for Defendant-Appellee.

Before: Cole and Gilman, Circuit Judges; Carr, District Judge^*.

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.

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.

2. Belew's employment history with Three Rivers

Three Rivers first hired Belew in 1991 for part-time work, washing trucks and working in its shop. On February 9, 1994, Belew was hired as a full-time truck driver. Prior to hiring 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 Stalbosky's negligent hiring and retention claim. The district court granted Three Rivers's motion on April 27, 1998, finding no evidence indicating that the officers of Three Rivers should have foreseen Belew's violent behavior. Stalbosky filed a timely notice of appeal on December 4, 1998, limiting the issue to the grant of summary judgment on his negligent hiring and retention claim.

II. ANALYSIS

A. Standard of review

We review de novo the district court's grant of summary judgment. See, e.g., Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is appropriate when 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. Civ. P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The judge is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

B. Applicable law

As a preliminary matter, Stalbosky argues that the district court wrongly applied another state's law of negligent hiring and retention rather than Kentucky's. In a previous memorandum order and opinion dated December 20, 1996, the district court had indeed looked to jurisdictions outside of Kentucky for guidance, finding no Kentucky decision on 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 taken, however, the district court noted the decision in Oakley and properly applied its holding.

Because jurisdiction in this case is based on diversity of citizenship, both the district court and this court are required to apply the law of the forum state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). We are in effect sitting as a state appellate court in Kentucky, with the obligation to decide the case as we believe the Kentucky Supreme Court would do. See Welsh v United States, 844 F.2d 1239, 1245 (6th Cir. 1988) ("[O]ur task [in a diversity case] is to make our best prediction, even in the absence of direct state court precedent, of what the Kentucky Supreme Court would do if it were confronted with this question.").

C. Negligent hiring and retention--whether Three Rivers knew or should have known that Belew was unfit for his position

Under Kentucky law, the two elements of a suit for negligent hiring and retention are that (1) the employer knew or reasonably should have known that the employee was unfit for the job for which he was employed, and (2) the employee's placement or retention at that job created an unreasonable risk of harm to the plaintiff. See Oakley, 964 S.W.2d at 442. The district court granted summary judgment in favor of Three Rivers on the grounds that Stalbosky failed to raise a genuine issue of material fact as to the first element, i.e., whether Three Rivers knew or reasonably should have known that Belew was unfit for his job as a truck driver.

In its analysis, the district court considered whether Sonny and Randy Crutcher, the owners and managers of Three Rivers, had any knowledge of Belew's prior crimes or violent acts before the murder of Myra Stalbosky. It first noted that Belew had lied on his application, denying any prior felony convictions. Turning then to Stalbosky's evidence, the court found that his supporting affidavits on the key issue of the Crutchers' knowledge constituted inadmissible hearsay. The district court concluded that "the plaintiff has not come forth with any affirmative evidence that Three Rivers did in fact know, or should have known, of Belew's unfitness."

Stalbosky argues on appeal that...