Ragaway v. City of Portland

Under ORS 30.265(6), “[e]very public body and its officers, employees and agents acting within the scope of their employment or duties . . . are immune from liability for . . . [a]ny claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”

Plaintiffs incurred costs for permits and installation following an order from the City of Portland  mandating that all existing nightclubs with an occupant load of over 100 persons have automatic fire sprinklers. Plaintiffs argued that the “code governs when and where sprinklers must be installed, thereby preempting any city ordinance that attempts to impose additional sprinkler requirements.” In response, the City argued that “the ordinance was not preempted, and, in any event, Plaintiffs were required to raise the challenges sooner and . . . before the City’s Fire Code Board of Appeals (FCBA).” The City also argued that, even if the ordinance was preempted, Plaintiffs’ claims failed for other reasons. Under ORS 30.265(6), “[e]very public body and its officers, employees and agents acting within the scope of their employment or duties . . . are immune from liability for . . . [a]ny claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” The Court agreed with the City and held that “the [FCBA] has authority to determine that some provisions of the code are inapplicable, whether because they do not apply as a factual matter or as a legal matter, which would encompass the determination that the provisions are preempted.” Affirmed.