- 23 -
“[O]ne of the hallmarks of traditional tort liability is the
availability of a broad range of damages to compensate the
plaintiff ‘fairly for injuries caused by the violation of his
legal rights.’” Id. at 235. Those damages include not only
compensatory damages, but damages that “redress intangible
elements of injury”, e.g., emotional distress and pain and
suffering. Id. at 235-237.
The initial letter from Mr. Forste’s attorney to DHS alleged
numerous causes of action, some of which sound in tort and others
of which involve nontort or contract rights. The claims for
intentional and negligent infliction of emotional distress
involve tort rights.17 Petitioners argue that the personal
injuries in this case include emotional distress.
The Small Business Job Protection Act of 1996 (SBJPA), Pub.
L. 104-188, sec. 1605(a), 110 Stat. 1838, amended section
104(a)(2) to limit the exclusion to amounts received for personal
physical injuries or physical sickness. However, that amendment
does not apply to any amount received under a written binding
agreement in effect on September 13, 1995. SBJPA sec.
17For purposes of determining whether the underlying causes
of action involve tort or tort type rights, we look to State law.
Pipitone v. United States, 180 F.3d 859, 862 (7th Cir. 1999);
Bland v. Commissioner, T.C. Memo. 2000-98. To that end,
California recognizes tort causes of action for both intentional
infliction of emotional distress, see Cervantez v. J.C. Penney
Co., 595 P.2d 975 (Cal. 1979), and negligent infliction of
emotional distress, see Marlene F. v. Affiliated Psychiatric Med.
Clinic, Inc., 770 P.2d 278 (Cal. 1989).
Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 NextLast modified: May 25, 2011