How the plaintiff having a greater risk of harm can limit negligence per se liability in Georgia torts

If you’re mapping out the Georgia torts landscape, negligence per se is one of those staples that shows up with surprising regularity. It’s the idea that a breach of a statute or regulation can be treated as evidence of negligence. But like many legal concepts, the real answer isn’t a one-line yes or no. It’s a nuanced negotiation of fault, causation, and how the facts line up with the rules.

Let’s walk through a common multiple-choice scenario you might see in this area, and then unpack what it means in plain terms.

Question at a glance

What defense might a defendant assert against negligence per se?

• A. The risk of harm was subjective

• B. The defendant was unaware of the statute

• C. The plaintiff had a greater risk of harm

• D. The statute was irrelevant to the situation

The correct answer is C: The plaintiff had a greater risk of harm. That moment captures a big idea in Georgia tort law: even when a statute was violated, the plaintiff’s own conduct can shift some responsibility back to the plaintiff. It’s a reminder that fault isn’t a binary “the defendant vs. the plaintiff.” It’s often a spectrum, with shared fault shaping the outcome.

So what’s going on here, and why does this defense matter?

What is negligence per se, in a nutshell

Negligence per se means the defendant’s violation of a statute is treated as evidence of negligence. But to get there, the plaintiff typically has to prove a few things:

• The defendant violated a statute or regulation.

• The plaintiff falls within the class the statute was meant to protect.

• The harm is of the type the statute was designed to prevent.

• The violation proximately caused the injury.

In Georgia, as in many jurisdictions, that framework sets the stage. The statute helps establish a breach, but it doesn’t automatically decide everything. The court still weighs causation, foreseeability, and, crucially, fault between the parties.

The defense that shifts the blame back to the plaintiff

So why is option C the right defense? Because negligence per se, while powerful, isn’t always dispositive. If the plaintiff’s own actions or circumstances increased the risk of harm, the defendant can argue that the fault isn’t entirely (or even predominantly) on the defendant. This is the heart of comparative fault in Georgia.

Think of it this way: the statute was meant to guard against a certain risk. If the plaintiff engaged in behavior that magnified that risk, the court might decide that the harm wasn’t solely the defendant’s fault. The plaintiff’s conduct becomes a relevant factor in allocating responsibility.

A concrete flavor helps here: suppose a statute requires drivers to stop at a red light. The plaintiff runs the red light anyway, and gets hit. If the plaintiff’s decision to ignore the signal factored into the collision, a court might reduce or even eliminate the defendant’s liability under negligence per se, depending on the facts and the fault apportionment rules in Georgia.

That idea—shared or comparative fault—keeps the analysis grounded in reality. It’s not about letting the defendant off the hook; it’s about distributing responsibility in proportion to fault. And in Georgia, where comparative fault rules apply, the plaintiff’s degree of fault matters a lot. If the plaintiff’s own reckless choices created the risk or contributed to the harm, the harm isn’t automatically one-sided.

Why the other options don’t hit the mark, in most Georgia contexts

• A. The risk of harm was subjective. This misses a key point. Negligence per se isn’t about whether risk was subjective or objective; it’s about whether a statute was violated and whether the plaintiff falls within the statute’s protection. A subjective risk argument doesn’t address the statutory framework or the comparative fault angle.

• B. The defendant was unaware of the statute. Ignorance of the law isn’t a shield. Even if the defendant didn’t know the statute existed, the violation can still count toward negligence per se. The question is whether the other elements align—especially causation and the plaintiff’s own contributory actions.

• D. The statute was irrelevant to the situation. If the statutory violation actually relates to the risk that caused the injury, it’s usually not irrelevant. The relevance is part of the element-setting. The defense would be more about disputing causation or the applicability of the statute than about irrelevance.

Other defenses that show up in this arena

While the “plaintiff had a greater risk of harm” line is a central defense, there are several other angles worth keeping in mind:

• The plaintiff’s own negligence or assumption of risk. If the plaintiff knowingly engaged in risky behavior, that can carve out some or all fault, especially under Georgia’s comparative fault regime.

• Causation questions. Even with a statute violated, it might be hard to tie the breach to the actual injury if an intervening cause breaks the chain.

• The statute’s protections don’t cover the situation. Sometimes a statute applies only to certain contexts; if the facts fit a different regulatory framework, the negligence per se theory may fail for lack of a proper link.

• The violation wasn’t the proximate cause. If the harm wouldn’t have flowed from the violation or if other factors were more directly connected to the injury, the defense can narrow the liability.

Putting Georgia’s rules in context

Georgia doesn’t treat negligence per se as a guaranteed verdict for the plaintiff. The law recognizes the value of the statute as evidence of breach, but it also acknowledges that fault is not siloed. The jury or judge weighs the overall fault picture, accounting for the plaintiff’s conduct and other contributing factors.

A practical way to think about it: negligence per se is a shovel that digs up a breach quickly, but the dirt around the hole—causation, foreseeability, and comparative fault—still has to be sifted through. The “plaintiff had a greater risk of harm” argument is one way to say, “yes, the statute was broken, but the plaintiff’s actions shift some of the risk back to them.”

What this means for real-world analysis (and for exams, if you’re looking at hypotheticals)

• Don’t stop at the violation. Use negligence per se as a path to breach, but then test causation and fault. If the plaintiff’s behavior heightened the risk, that’s a strong line for the defense.

• Keep comparative fault front and center. In Georgia, fault is allocated. A defense anchored in the plaintiff’s greater risk can lead to a reduced recovery or, in some cases, a full defense against a negligence per se claim.

• Consider the specific statute. Some statutes are designed to protect very particular types of victims or situations. The more the facts align with the statute’s purpose, the stronger the plaintiff’s case—unless the comparative fault cuts in.

• Be mindful of the context. In traffic, premises liability, or product liability settings, the precise facts matter a lot. A plaintiff who ignores obvious warnings, or who knowingly engages in risky activity, can tilt the balance toward the defense.

A quick, practical takeaway

When you’re evaluating negligence per se in Georgia, test these elements in your head:

• Was there a statutory violation?

• Was the plaintiff within the class the statute protects?

• Was the harm the type the statute aims to prevent?

• Did the violation cause the injury?

Then ask: did the plaintiff contribute to or heighten the risk? If yes, the defense about the plaintiff having a greater risk of harm gains traction. If not, the breach argument stands stronger.

A few closing thoughts to keep you grounded

• The value of negligence per se lies in its clarity. A statute can be a straightforward signal of fault. But the real courtroom dynamic is about how fault is shared. The plaintiff’s own conduct can complicate what seems straightforward at first glance.

• Don’t fall into the trap of treating the statute as a magic wand. It’s a tool, not a guarantee. You still need to map out the full chain of causation and fault.

• In exams or hypothetical scenarios you might encounter, watch for defenses that rest on the plaintiff’s conduct. That’s where many questions pivot from a clean breach to nuanced fault sharing.

If you’re studying Georgia torts, this is a classic junction to watch: negligence per se, the breach signal, and the ongoing conversation about who bears what portion of the risk. The aim is to feel the rhythm of the argument—the statute sets the stage, but how the facts tilt the scales determines the outcome.

And if you ever get asked to pick a defense in a negligence per se scenario, remember the same rule of thumb: the defense that emphasizes the plaintiff’s greater risk of harm is often the hinge that changes the verdict. It’s about fairness in fault, a concept that resonates beyond the courtroom and into everyday decisions about safety, responsibility, and how we move through shared spaces.

If you want to explore more of these nuances, we can walk through additional hypotheticals—comparing traffic statutes, premises liability standards, and product safety regs—to see how the defenses stack up in different Georgia contexts. After all, the law isn’t a single lane; it’s a highway with many routes to the same destination: a just allocation of responsibility.