ARGUMENT

For the reasons explained below, the court must grant partial summary judgment on the

issue of tort liability in favor of Plaintiff. In a diversity of citizenship case, the district court must

apply forum state law including its choice of law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). East Kansas uses the traditional

approach for resolving conflicts of law. The traditional approach follows the RESTATEMENT

(FIRST) OF CONFLICT OF LAWS, which requires application of the law of the place of the wrong.

East Kansas law applies because Plaintiff’s cause of action arises under tort and the place of the

wrong is East Kansas. West Kansas law would bar Plaintiff’s claim because a workers’

compensation award is the exclusive remedy for a workplace injury. Because the law of East

Kansas does not preclude Plaintiff’s tort claim and Defendant is liable in tort, the only remaining

issue is the amount of damages Plaintiff is owed.

Plaintiff’s cause of action is governed by the law of the place of the wrong because

according to the RESTATEMENT (FIRST) OF CONFLICT OF LAWS, the law of the place of the wrong

determines an employer’s vicarious tort liability. The RESTATEMENT (FIRST) OF CONFLICT OF

LAWS § 386, provides “[t]he law of the place of wrong determines whether a master is liable in

tort to a servant for a wrong caused by a fellow servant.” Thus, the law of the place of the wrong

determines whether Plaintiff may recover in tort.

East Kansas is the place of the wrong because East Kansas is where Plaintiff suffered

severe emotional distress. Under RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 377, “[t]he

place of wrong is in the state where the last event necessary to make an actor liable for an alleged

tort takes place.” Intentional infliction of emotional distress requires an intentional act, which is

extreme and outrageous, and which causes severe emotional distress. In an intentional infliction

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of emotional distress claim, a defendant is liable when the defendant’s intentional act, which is

extreme and outrageous causes the plaintiff’s severe emotional distress. Thus, severe and

emotional distress is the last event necessary to make an actor liable for intentional infliction of

emotional distress.

Plaintiff’s severe emotional distress occurred in East Kansas. According to the

undisputed facts, Plaintiff’s severe emotional distress was an immediate reaction to repeated and

unwanted sexual advances in the workplace. Because Plaintiff’s severe emotional distress

occurred in the workplace located in East Kansas, East Kansas is the place of the wrong.

The Restatement’s rules concerning torts clearly require the application of East Kansas

law. The Defendant is liable in tort and the law of East Kansas allows Plaintiff to recover in tort.

Thus, this court must grant partial summary judgment on the issue of tort liability in favor of

Plaintiff.