Robert E. and Louise L. Mumy - Page 11

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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