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Exam 28
30 minutes

Fact Pattern

A driver is driving a car along a public highway in State X. The highway is owned and maintained by State X, and State X promulgates all of the laws governing conduct on the highway, including the speed limits. 

Part of the highway is under construction. The plaintiff is a member of the construction crew, all of whom are employees of State X. The construction crew is working behind a series of concrete barriers, which line the highway between the crew and the adjacent traffic. The use of these barriers is required by state law to protect workers during highway construction. 

Within the construction zone, traffic is limited to one lane in each direction, and each lane is hemmed in by concrete barriers on both sides. The speed limit on the highway is normally 65 miles per hour. State law provides that in a construction zone of the type presented here, the speed limit is reduced to 45 miles per hour. The driver enters the construction zone and slows to 45 miles per hour. 

A large truck suddenly looms in the driver’s rearview mirror. The truck is traveling at 65 miles per hour. The driver realizes that the truck will hit the driver’s car in a matter of seconds if the driver does not take action. There is nowhere for the driver to go but straight ahead. Therefore, the driver speeds up to just over 65 miles per hour. 

A few seconds later, the driver’s car hits a bump in the road and crashes into one of the concrete barriers. The barrier was improperly anchored to the ground by a member of the construction crew during installation. Consequently, the collision pushes the barrier into the plaintiff with great force, injuring the plaintiff. The crash might not have occurred if the driver had been going more slowly.

The plaintiff brings suit in a State X court, naming both the driver and State X as defendants. The plaintiff seeks to invoke negligence per se against the driver, based on the driver’s exceeding the speed limit. The plaintiff also alleges that State X was negligent (1) on a theory of respondeat superior, for improperly installing the concrete barrier that injured the plaintiff, and (2) for failing to post a lower speed limit in the construction zone, which would have reduced the risk of accidents like the one that injured the plaintiff. 

State X’s tort claims act governs the conditions under which a plaintiff can sue the state. The act provides, in part, as follows:

Limited Waiver of Sovereign Immunity: Any person may sue State X in tort for negligence in the performance of a ministerial act. State X shall not be subject to suit by any person for negligence in the performance of any discretionary act.

State X moves to dismiss the case based on sovereign immunity. 


  1. Should the judge grant State X’s motion to dismiss? Explain.
  2. Can the plaintiff successfully invoke negligence per se against the driver? Explain.

Question 1

Should the judge grant State X’s motion to dismiss? Explain.

Question 2

Can the plaintiff successfully invoke negligence per se against the driver? Explain.

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