Graupmann v. Nunamaker Family Ltd. Partnership, 136 So. 3d 863

On Oct. 28, 2008, David Sims and his sister were injured in the parking lot of a Quik-Stop/Jack in the Box; sister fell in a hole, Sims tripped on exposed rebar protruding from a broken concrete curb while walking toward her and was injured.
Sims and his sister sued multiple defendants including Jack in the Box under negligence and strict liability (La. Civ. Code arts. 2315, 2317.1).
Jack in the Box moved for partial summary judgment as to Sims; the district court granted the motion and dismissed Sims’s claims with prejudice, reasoning the curb defect was open and obvious.
On appeal, Sims argued material factual issues remained about whether the curb condition presented an unreasonable risk of harm and whether Jack in the Box breached its duty.
The appellate court reviewed de novo, applying Broussard’s risk-utility framework and later circuit precedent (Currie), focusing on whether open-and-obvious defects present triable issues on breach/comparative fault rather than on duty.
The appellate court reversed and remanded, holding summary judgment inappropriate because whether an open-and-obvious condition is nevertheless an unreasonable risk (and thus a breach) is a fact question for the trier of fact.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary judgment was proper on Sims’s claims that exposed rebar/ broken curb was unreasonably dangerous	The defect may not have been unreasonably obvious and factual disputes (risk-utility, comparative fault) preclude summary judgment	The curb was fully visible in daylight and therefore an open-and-obvious hazard; no duty as a matter of law	Reversed: triable factual issues exist; whether open-and-obvious risk is unreasonable (breach) is for the fact finder
Role of open-and-obvious doctrine in duty analysis	Open-and-obvious does not automatically preclude liability; it factors into breach and comparative fault	If condition is obvious to all, defendant owes no duty as a matter of law	Court: whether defect is open-and-obvious affects breach, not duty; breach is a fact question under Broussard/Currie

Broussard v. State, Office of State Buildings, 113 So.3d 175 (La. 2013) (establishes risk-utility balancing and holds open-and-obvious analysis is part of breach/factfinder inquiry)
Currie v. Scottsdale Indem. Co., 123 So.3d 742 (La. App. 1 Cir. 2013) (applies Broussard; holds open-and-obvious defects and unreasonableness are triable fact issues)
Reed v. Wal-Mart Stores, Inc., 708 So.2d 362 (La. 1998) (describes whether defect presents unreasonable risk as mixed question of fact and law)