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Penland v. Redwood Sanitary Sewer Serv. Dist. - 146 Or. App. 225, 934 P.2d 434 (1997)


Or. Rev. Stat. § 30.265(3)(c) provides, in part, that every public body and its officers, employees and agents acting within the scope of their employment or duties are immune from liability for any 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.


Plaintiff neighbors filed an action for nuisance that sought to enjoin defendant sewer district from its operation of a sludge compost facility. Defendant asserted a defense of "discretionary function" immunity under the Oregon Tort Claims Act (OCTA), Or. Rev. Stat. § 30.265(3)(c). The trial court enjoined the operation and found that defendant's board never made an independent decision, but rather delegated its decision-making ability to its manager. The trial court determined that defendant was not entitled to immunity. On appeal, the appellate court reversed the trial court's ruling and held that defendant was entitled to prevail on its discretionary function immunity defense.


Was defendant sewer district immune from liability under Or. Rev. Stat. § 30.265(3)(c) although the decision-making ability of defendant’s board was delegated to its manager?




Although defendant's board decision to continue operation with on-site mitigation was based, in large part, on the information and advice from its manager, defendant's board did, in fact, make the decision; and that the decision involved an assessment of the "costs and benefits," the "relative effectiveness and risks," and the "competing goals and priorities" associated with continuing the plant's operation with mitigation measures.

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