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within the Burke definition of a tort and would satisfy the first
prong of the Schleier test.
Additionally, Ohio Rev. Code Ann. sec. 2307.60(A) allows
“Anyone injured in person or property by a criminal act” to
“recover full damages in a civil action unless specifically
excepted by law”. Although not cited in petitioner’s complaint,
this section governs civil actions for assault or battery.
Additionally, Ohio Rev. Code Ann. sec. 2307.60(B)(1) (LexisNexis
2005), defines a “tort action” as a “civil action for damages for
injury, death, or loss to person or property other than a civil
action for damages for a breach of contract or another agreement
between persons.” Petitioner’s claim for assault based on the
pinch would also satisfy the Burke definition of tort, and the
first prong of the Schleier test.
Therefore, whether the settlement was based on the
harassment or the assault claims, petitioner’s damages were
received “for claims based upon tort or tort type rights,” as
Ohio law provides for damages for violations of the Ohio civil
rights statute and for injuries resulting from a criminal act.
The first prong of the Schleier test is satisfied.
Personal Physical Injuries or Physical Sickness
To be excludable under section 104(a)(2) and the second
prong of the Schleier test, the damages must have been received
“on account of personal physical injuries or physical sickness.”
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Last modified: May 25, 2011