           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
