Patricia DURON, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant CAUSE NO. EP-23-CV-324-KC United States District Court, W.D. Texas, El Paso Division Signed March 27, 2025 Counsel Alfonso Bafidis-Rodriguez, Robert L. Ranco, Bafidis Law Injury Firm, Helotes, TX, for Plaintiff. Marisa Y. Ybarra, Ray Pena McChristian PC, El Paso, TX, Brian Brack, Isaac Abraham Gutierrez, Ray, Pena, McChristian, El Paso, TX, Jeff H. Ray, Ray Pena McChristian, P.C., San Antonio, TX, for Defendant. Cardone, Kathleen, United States District Judge ORDER *1 On this day, the Court considered Costco's Motion for Summary Judgment (“Mot. Summ. J.”), ECF No. 42. For the following reasons, the Motion is GRANTED in part and DENIED in part. I. BACKGROUND This is a slip-and-fall case. The following facts are undisputed unless otherwise noted. On the morning of March 11, 2022, Plaintiff Patricia Duron arrived at a Costco warehouse in El Paso, Texas, between 10:00 and 10:30 AM, either during or in the aftermath of a winter storm. See Proposed Undisputed Facts (“PUF”) ¶¶1–2, ECF No. 42-7; Mot. Summ. J. Ex. D (“Incident Report”), ECF No. 42-4; PUF Resp. ¶¶ 1–2, ECF No. 135-2; Resp. Mot. Summ J. ¶ 5 & n.6 (citing Incident Report), ECF No. 135. At the time, the ground in Costco's vestibule—partially covered by an overhang—was wet with some combination of snow, water, and/or ice. PUF ¶ 3; PUF Resp. ¶ 3; Mot. Summ. J. Ex. F, ECF No. 42-6; Resp. Mot. Summ. J., Exs. 5–6. Duron was aware of the hazardous conditions when she arrived. Duron Dep. 29:11–15; 35:5–9, ECF No. 42-2. But she states that she had no other means to enter Costco other than to walk through the vestibule. Sur-Reply ¶ 12 (citing Dep. Michael Vasquez),[1] ECF No. 152. Duron contends that the entrance was wet because customers and employees had tracked in snow and water—including when Costco employees had pushed “hundreds of grocery carts covered in snow” into the vestibule prior to Duron's arrival. PUF Resp. ¶ 3; Resp. Mot. Summ. J. ¶¶ 5–9 (collecting evidence). Costco, however, maintains that the “snow mixed with water with ice” resulted solely from the ongoing storm. Mot. Summ. J. ¶ 3; PUF ¶¶ 3–4. Notwithstanding their dispute over the cause of the accident, it is undisputed that as Duron entered the vestibule, she slipped and fell. 1st Am. Compl. (“FAC”) ¶¶ 6–7, ECF No. 25; Duron Dep. 54:15–55:7; Incident Report. The fall allegedly caused her to sustain severe injuries. FAC ¶ 9. On August 4, 2023, Duron filed suit against Costco in Texas state court, asserting claims for premises liability, negligence per se, and gross negligence. See generally Notice Removal Ex. A (“Pet.”), ECF No. 1-1. Costco removed the case on August 25. Notice Removal, ECF No. 1. On January 3, 2024, Duron filed her First Amended Complaint, maintaining the same claims. Several weeks later, Costco moved to dismiss Duron's negligence per se and gross negligence claims. Mot. Dismiss, ECF No. 27. The Court granted the Motion in part, dismissing the negligence per se claim but allowing the gross negligence claim to proceed. Duron v. Costco Wholesale Corp., No. 3:23-cv-324-KC, 2024 WL 3489490, at *6 (W.D. Tex. July 19, 2024). *2 While its Motion to Dismiss was still pending, Costco filed a Motion for Summary Judgment, seeking summary judgment on all of Duron's claims. See generally Mot. Summ. J. The Court repeatedly extended or stayed Duron's deadline to respond to the Motion, pending resolution of a set of intractable discovery disputes. See Apr. 1, 2024, Text Order; May 8, 2024, Order, ECF No. 63; Aug. 28, 2024, Order 3, ECF No. 84; Sept. 5, 2024, Order 4, ECF No. 89; Sept. 19, 2024, Order 3, ECF No. 93; Nov. 14, 2024, Order 2, ECF No. 123; Jan. 3, 2025, Order 2, ECF No. 130. On February 7, 2025, Duron filed her Response, and Costco replied a week later, see Reply Summ. J., ECF No. 136. Duron then sought leave to file a sur-reply, arguing that Costco had introduced new arguments in its Reply that were absent from its Motion. See Mot. Leave, ECF No. 144. The Court granted the request as unopposed, see Mar. 12, 2025, Order, ECF No. 151, and Duron's Sur-Reply, ECF No. 152, was docketed on March 12. Costco sought leave to file an additional brief in response to Duron's Sur-Reply, and the Court denied its request for lack of good cause. Mar. 20, 2025, Order, ECF No. 156. Both parties have also filed ancillary motions: (1) Costco's First Amended Motion to Strike Duron's Summary Judgment Evidence (“Mot. Strike”), ECF No. 138, and (2) Duron's Motion for Spoliation of Evidence and Discovery Sanctions (“Mot. Sanctions”), ECF No. 141. Duron filed a Response to the Motion to Strike, ECF No. 140, to which Costco filed a Reply, ECF No. 145. Costco filed a Response to the Motion for Sanctions, ECF No. 146. Duron did not file a Reply, and the deadline to do so elapsed. See W.D. Tex. L.R. CV-7(e)(2). Costco sought leave to file a supplemental response brief regarding the Motion for Sanctions, which the Court denied for lack of good cause. Mar. 19, 2025, Order, ECF No. 154. II. DISCUSSION A. Standard A court must enter summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quoting Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (per curiam)). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir. 1996). “[The] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Wallace v. Tex. Tech. Univ., 80 F.3d 1042, 1046–47 (5th Cir. 1996). To show the existence of a genuine dispute, the nonmoving party must support its position with citations to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials[,]” or show “that the materials cited [by the movant] do not establish the absence ... of a genuine dispute, or that [the moving party] cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c). The court resolves factual controversies in favor of the nonmoving party, but factual controversies require more than “conclusory allegations,” “unsubstantiated assertions,” or “a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Further, when reviewing the evidence, the court must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh evidence. Man Roland, Inc. v. Kreitz Motor Express, Inc., 438 F.3d 476, 478–79 (5th Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Thus, the ultimate inquiry in a summary judgment motion is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505. B. Analysis: Costco's Motion to Strike and Duron's Motion for Sanctions *3 Because the admissibility of evidence and the propriety of an adverse inference instruction as a spoliation sanction both impact the Court's resolution of Costco's Motion for Summary Judgment, the Court first addresses Costco's Motion to Strike and Duron's Motion for Sanctions before turning to the parties’ substantive arguments. 1. Costco's Motion to Strike Summary Judgment Evidence Costco objects to several pieces of evidence on which Duron relies in her Response to its Motion for Summary Judgment. First, it challenges substantial portions of the depositions of Michael Vasquez (Costco's corporate representative designated under Federal Rule of Civil Procedure 30(b)(6)), James Holder and Eduardo Robles (two Costco employees working on the day of the incident), and Duron herself. Mot. Strike 3–5, 7. Second, Costco contests whether the Court can consider its own Snow and Ice Policy, which has been proffered by Duron. Id. at 7. And third, Costco objects to Dr. Kevin Forehand's expert report in its entirety. Id. at 5–7. Costco asserts that “[t]here is no difference between the standards for evidence that would be admissible in a summary judgment proceeding and those applicable at a regular trial.” Id. at 2. Costco cites both Lee v. Offshore Logistical & Transport, L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) and In re Deepwater Horizon, 48 F.4th 378, 385 (5th Cir. 2022) for this proposition. But these cases explain that at summary judgment, while the substance of the evidence must be admissible, it may nevertheless be presented in a form that would not itself be admissible at trial. See Lee, 859 F.3d at 355 (citing 11 Moore's Federal Practice–Civil ¶ 56.91 (2017)); Deepwater, 48 F.4th at 385 (citing Lee, 859 F.3d at 355); see also Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact [at summary judgment] cannot be presented in a form that would be admissible in evidence.”). “Accordingly, trial courts in this circuit have overruled hearsay, authentication, and personal knowledge objections to summary judgment evidence when that evidence was capable of being presented in an admissible form.” Kafi, Inc. v. Fairgate Tr., No. 23-cv-4217, 2025 WL 391765, at *4 (S.D. Tex. Feb. 4, 2025) (collecting cases). a. Deposition Transcripts Costco objects to all of Holder and Duron's deposition transcripts, as well as significant portions of the depositions of Vasquez and Robles. Mot. Strike 3–5, 7. The grounds for Costco's objections include authentication, relevance, hearsay, misleading, speculative, argumentative, and inappropriate commentary by Duron's counsel, Mr. Alfonso Bafidis. Id. i. Authentication First, it challenges the entirety of Holder and Duron's deposition transcripts, arguing that they “lack[ ] authentication.” Id. at 4, 7.Costco references Federal Rule of Civil Procedure 30(f)(1), which requires a designated officer to certify in writing that the deponent was duly sworn and that the deposition accurately reflects their testimony. Id. But Duron attached just such certifications to her Response. See Resp. Mot. Strike Exs. 2–3, ECF No. 140-1. Therefore, to the extent there were any issue in the first place, there is no longer. See, e.g., Perret v. Nationwide Mut. Ins. Co., No. 10-cv-522, 2012 WL 3930630, at *1 (E.D. Tex. Sept. 10, 2012) (overruling objection to transcript authentication where plaintiff provided a certification and defendant did not challenge the transcript's accuracy). *4 In its Reply, Costco does not renew these objections, see Reply Mot. Strike 2, 10, suggesting that it is abandoning its certification argument. See, e.g., Hernandez v. Scott, No. 5:10-cv-1051-OG, 2011 WL 2619342, at *1 (W.D. Tex. July 1, 2011). Instead, Costco changes tack, asking the Court to strike the video recording of Holder's deposition on the grounds that it is “an improper means to authenticate his transcript,” citing Texas Rule of Civil Procedure 56(c). Reply Mot. Strike 2. This objection is flawed for several reasons. First, it was not raised in Costco's initial Motion, see generally Mot. Strike, and is thus not properly before the Court. See Hernandez v. United States, 888 F.3d 219, 224 n.1 (5th Cir. 2018). Second, Duron relies on a designated officer's certification—not a video recording—to authenticate the transcript. Resp. Mot. Strike Ex. 3. Third, Texas Rule of Civil Procedure 56(c) does not exist: The only Texas Rule of Civil Procedure 56 concerns special damages, which is irrelevant here. See Tex. R. Civ. P. 56. Indeed, with limited exceptions, the Texas Rules of Civil Procedures do not apply to these federal proceedings at all. See, e.g., Technip Offshore Contractors v. Williams Field Servs., No. 04-cv-96, 2006 WL 581273, at *14 (S.D. Tex. Mar. 7, 2006) (first citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); and then citing Times-Picayune Pub. Corp. v. Zurich Am. Ins. Co., 421 F.3d 328, 334 (5th Cir. 2005)). And as for the Federal Rules, Rule 30 allows the party taking the deposition to choose the recording method, and the advisory committee notes clarify only that if a deposition is recorded solely by video, a transcript is required for use at trial or in dispositive motions. See Fed. R. Civ. P. 30 advisory committee's note. Duron provides just such a transcript. See Resp. Mot. Summ. J. Ex. 3 (“Holder Dep.”). ii. Relevance Second, Costco objects to certain parts of each deposition as “irrelevant.” See Mot. Strike 3–5, 7. Objections for relevance are generally unnecessary at the summary judgment stage because the inquiry would be duplicative of determining whether evidence creates a genuine dispute of material fact. Sandoval v. County of San Diego, 985 F.3d 657, 665 (9th Cir. 2021) (citing Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006)). Evidence that establishes such a dispute is necessarily “of consequence in determining the action” under Federal Rule of Evidence 401 and therefore relevant. Id. Conversely, if the evidence does not create a material dispute, its relevance is immaterial, as it will not affect the Court's ruling. Id. Accordingly, Costco's objections based on relevance are overruled. See, e.g., id.; see also Smith v. State Farm Lloyds, No. 18-cv-210, 2020 WL 5458653, at *3 (N.D. Tex. May 8, 2020) (overruling objection that only a deposition's “relevant pages should be ... included in [the] summary judgment record”), adopted, 2020 WL 2832393 (June 1, 2020). iii. Hearsay Third, Costco argues that parts of the deposition transcripts include hearsay. Mot. Strike 4, 7. Hearsay is a statement that (1) was not made while testifying at the current trial or hearing and (2) is offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c)(1)–(2). Costco objects to Duron's entire deposition transcript as hearsay due to the alleged authentication issues. As discussed, there is no problem with the transcript's authentication. But even assuming it were not authenticated, Costco's hearsay argument conflates the standard for presenting evidence at summary judgment with the standard for trial. Deposition testimony is often hearsay because it is not given during the current trial or hearing. But see Fed. R. Evid. 801(d)(2)(A) (an opposing party's statement is not hearsay). It is routinely admissible at summary judgment, however, because a deponent can ordinarily be called or subpoenaed to testify at trial—meaning the evidence can be presented in an admissible form. See Kalmus v. Zimmermann, No. 1:15-cv-316-RP, 2016 WL 6462297, at *6 (W.D. Tex. Nov. 1, 2016) (collecting cases). It appears Duron could provide live testimony at trial, and Costco does not argue otherwise. See generally Mot. Strike. Therefore, Costco's objection to her deposition transcript as inadmissible hearsay is overruled. *5 Costco also objects to a portion of Vasquez's deposition as hearsay. Mot. Strike 4 (citing Resp Mot. Summ. J. Ex. 1 (“Vasquez Dep.”), 282:1–25). Although Costco does not specify the exact basis for its objection, it appears to reference a statement by Duron's counsel, Bafidis, who told Mr. Vasquez, “[W]e had testimony from Mr. Holder that he brought in 400 carts, 400 carts at 8:30 in the morning.” Vasquez Dep. 281:8–10. Like Duron, Holder was deposed and could also presumably be called as a witness at trial. Additionally, Duron does not rely on Bafidis’ statement in her Response to Costco's Motion for Summary Judgment, and the Court does not consider it in its adjudication of the merits. Therefore, Costco's hearsay objections are overruled. iv. Misleading Fourth, Costco objects to parts of several deposition transcripts as “misleading.” Mot. Strike 3, 4. Federal Rule of Evidence 403 permits exclusion of relevant evidence due to a risk of misleading the jury. But this objection serves no purpose at summary judgment, where no jury is present and the Court does not weigh evidence. Nelson v. Fluoropharma Med., Inc., No. 13-cv-1152, 2016 WL 53825, at *5 & n.60 (D. Nev. Jan. 4, 2016) (citing Burch, 433 F. Supp. 2d at 1119); see also Perret, 2012 WL 3930630, at *1 (“The court agrees that a ‘misleading’ objection is not a proper objection [at summary judgment].”). Moreover, it is unclear what makes any of Holder or Robles's testimony misleading, and Costco does not explain its objection. Mot. Strike 4. As to Vasquez, Costco argues that his testimony is misleading because it suggests “that the camera in the vestibule area would have captured the area where [Duron] identified she slipped and fell.” Mot. Strike 3 (citing Vasquez Dep. 244:11–24). Yet the very portion of the deposition that Costco cites includes Vasquez's statement that “that camera wouldn't have captured where [Duron] said she fell.” Vasquez Dep. 244:22–24. Far from being misleading, this testimony wholly corroborates Costco's position on what the camera would show. Accordingly, Costco's objections on the grounds that certain testimony is misleading are overruled. v. Personal Knowledge and Speculation Costco also objects to various parts of the transcripts for lacking “personal knowledge” and for “speculation.” Mot. Strike 3, 4. It makes broad, blanket objections to multiple pages of deposition transcripts without specifying which statements allegedly lack personal knowledge. See id. (citing Vasquez Dep. 280:9–25, 282:11–25, 283:1–25; Holder Dep. 32, 34, 35, 40, 48, 146, 244–250). Yet some of the testimony on the objected-to pages is self-evidently based on personal knowledge. For example, Holder's statement that “I come in at 8:30 to get the carts up out of the parking lot.” Holder Dep. 216:20–21; see also, e.g., id. at 48:20 (“[The] entrance [is] on the right.”). Certainly, some remarks by the examining attorney, Bafidis, on the flagged pages are likely not based on personal knowledge. See, e.g., id. at 245:10–12 (“Next to the flat carts, there's, there's track marks.”). But of course, Duron does not rely on her attorney's statements as evidence, nor does the Court in its Order. Ultimately, after reviewing each page Costco objects to, the Court finds no statement relied on at summary judgment that evidently lacks personal knowledge. Accordingly, Costco's objections based on lack of personal knowledge are overruled. vi. Argumentative Costco next objects to three portions of Vasquez's deposition as “argumentative.” Mot. Strike 3 (citing Vasquez Dep. 272:1–26, 281:1–25, 282:1–10). Upon review, Bafidis’ questioning was at times indelicate. See, e.g., Vasquez Dep. 272:18–22 (“I just wanted to make sure that this is the argument that you support and you stand behind, or if it's not, that way, we can let the Judge know. And that way, she doesn't have to consider the evidence. Which is it?”). But again, the Court does not consider Bafidis’ statements as evidence. And Costco does not appear to argue, nor does the record indicate, that Vasquez was intimidated into giving an answer he otherwise would not have. As other courts have noted, “[n]o one expects the deposition of a key witness in a hotly contested case to be a non-stop exchange of pleasantries.” Jones v. Mundy Contract Maint., Inc., No. 01-cv-2007, 2003 WL 25528965, at *2 (S.D. Tex. Jan. 23, 2003) (quoting Freeman v. Schointuck, 192 F.R.D. 187, 189 (D. Md. 2000)). Nevertheless, depositions must not escalate into “rhetorical road rage.” Id. (quoting Freeman, 192 F.R.D. at 189). While the Court admonishes all parties to maintain professional courtesy, Bafidis’ conduct did not rise to a level warranting sanction, see Jones, 2003 WL 25528965, at *2 (collecting cases), and this objection too is overruled. vii. Mischaracterization of the Evidence; Misstatement of Prior Testimony; Counsel's Testimony; and Legal Conclusions *6 Similarly, Costco objects to several of Bafidis’ statements during Vasquez, Holder, and Robles’ depositions as mischaracterizations of evidence, misstatements of prior testimony, and improper legal conclusions. Mot. Strike 3–5. But because Duron does not rely on any of these statements as evidence in opposing Costco's Motion for Summary Judgment, and the Court does not consider them, these objections are denied as moot. Accordingly, Duron's objections to the deposition transcripts are either denied on the merits or as moot. In either case, they do not warrant striking any evidence from the record. b. Costco's Snow and Ice Policy Next, Costco objects to Duron's production of its Snow and Ice Policy, arguing that it “contains hearsay, is irrelevant, and is being proffered as a mischaracterization of the evidence.” Mot. Strike 7. Again, Costco's hearsay objection is premature, as it has not shown that Duron will be unable to introduce or authenticate the document in an acceptable format at trial. Either party could likely present a witness to authenticate it. See, e.g., Esquivel v. Fudge, No. 22-cv-556, 2023 WL 5658338, at *7 (N.D. Tex. Aug. 31, 2023). Moreover, Costco has not established that the Policy will be used to prove the truth of the matter asserted, meaning it may not constitute hearsay at all. See, e.g., United Healthcare Servs., Inc. v. Rossel, No. 21-cv-1547, 2024 WL 4451761, at *9 (N.D. Tex. July 23, 2024), adopted, 2024 WL 4326539 (Sept. 27, 2024). Rather, the Policy may simply be used to show what Costco employees were on notice of. Further, as discussed above in connection with other relevance objections, the Court only considers the Policy to the extent it is relevant. And finally, Costco offers no explanation or support for its claim that the Policy mischaracterizes the evidence. Accordingly, Costco's objection to the production of its Snow and Ice Policy is overruled. c. Dr. Forehand's Expert Testimony Finally, Costco objects to Duron's use of Dr. Kevin Forehand's expert report on several grounds. Mot. Strike 5–7. First, Costco argues that Dr. Forehand's supplemental report was never produced in discovery and is therefore inadmissible at summary judgment. Id. at 5. Second, it objects to the report in its entirety, claiming it “lacks foundation, is unsworn, and does not establish that Dr. Forehand has the requisite qualifications ... to proffer his expert opinions.” Id. Third, Costco challenges specific portions of the report for lack of personal knowledge, speculation, and relevance. Id. at 5–7. Duron responds to each objection. She argues that the supplemental report falls within Federal Rule of Civil Procedure 26(e)’s exception, which allows parties to supplement expert reports if they become aware of inaccuracies or omissions. Resp. Mot. Strike 4. She disputes Costco's claim that the report is “unsworn,” because she had attached Dr. Forehand's affidavit to his report. Id. (citing Resp. Mot. Summ. J. Ex. 7, 11–13). She also contends that Dr. Forehand is qualified as a “safety expert on the established industry standards of retail stores.” Id. at 5. Finally, she maintains that his opinions are based on a reasoned analysis of the totality of the evidence. Id. After reviewing the summary judgment filings, the Court finds Dr. Forehand's expert report is not relevant to any of the issues presented for adjudication at summary judgment. Moreover, Costco presents its objections in brief bullet points, and Duron's response is similarly sparse. See generally Mot. Strike 5–7; Resp. Mot. Strike 4–5. Accordingly, the Court declines to consider the objection at this time, without prejudice to reasserting in the form of a Daubert motion or motion in limine in advance of trial, with argument and citation to authority. 2. Duron's Motion for Spoliation of Evidence and Discovery Sanctions *7 Turning to the second preliminary matter, Duron seeks an adverse inference instruction due to Costco's spoliation of evidence—specifically, its failure to preserve video footage from the day of her fall. Mot. Sanctions ¶¶ 7–17. She also seeks additional sanctions based on Costco's failure to identify a third employee stationed at the entrance that day, and misrepresentation of whether it has a “Safety Director/Coordinator.” Id. ¶¶ 18–26. a. Spoliation Duron argues that all reasonable inferences should be drawn in her favor because Costco failed to preserve relevant video evidence. Mot. Sanctions ¶¶ 7–13. Costco concedes that it deleted surveillance footage from the day of the incident but responds that its failure to preserve the video was not in bad faith, and, regardless, that the deleted footage could not have captured Duron's fall or anything else that bears on a genuine dispute of material fact in this matter. Resp. Mot. Sanctions ¶¶ 3–9. Spoliation occurs when evidence is destroyed or significantly altered. Van Winkle v. Rogers, 82 F.4th 370, 374 (5th Cir. 2023) (citing Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015)). Courts may impose sanctions, including an adverse inference instruction, when evidence is destroyed in bad faith. Id. (citing Guzman, 804 F.3d at 713). An adverse inference instruction tells the jury that they may infer that a party destroyed important evidence in bad faith because its contents were unfavorable to that party. In re Enron Corp. Sec., Derivative & ERISA Litig., 762 F. Supp. 2d 942, 963 (S.D. Tex. 2010) (citations omitted). To obtain an adverse-inference instruction, a party must establish that: (1) the opposing party had a duty to preserve the evidence when it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was potentially relevant to the movant's claim or defense. Coastal Bridge, Co., L.L.C. v. Heatec, Inc., 833 F. App'x 565, 574 (5th Cir. 2020) (citing Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 615–16 (S.D. Tex. 2010)). At summary judgment, the Court considers whether there is at least a genuine dispute of material fact on each of these elements, in which case the Court proceeds with its merits analysis under the assumption that the trier of fact will be entitled to draw an adverse inference at trial. Van Winkle, 82 F.4th at 378, 382; Washington v. Wal-Mart La. LLC, No. 16-cv-1403, 2018 WL 2292762, at *3 (W.D. La. May 17, 2018) (citing Schreane v. Beemon, 575 F. App'x 486, 490 (5th Cir. 2014)). Duron argues that each element has been satisfied. Mot. Sanctions ¶¶ 7–13. And Costco does not dispute that it had a duty to preserve the evidence when it was destroyed—nor does it appear that it could, given that Duron's counsel had sent a preservation letter. See Mot. Sanctions Ex. C; see also Van Winkle, 82 F.4th at 375 (“A party's duty to preserve evidence comes into being when the party has notice that the evidence is relevant to the litigation or should have known that the evidence may be relevant.” (quoting Guzman, 804 F.3d at 713)); see also, e.g., Cornejo v. EMJB, Inc., No. 5:19-cv-1265-ESC, 2021 WL 4526703, at *4 (W.D. Tex. Oct. 4, 2021) (finding “no dispute that” defendant had duty to preserve evidence where plaintiff sent preservation letter). Instead, Costco argues only that (1) it did not destroy the evidence in bad faith and (2) the missing footage is not relevant to Duron's claims. Resp. Mot. Sanctions ¶¶ 3–9. i. Bad Faith *8 Duron contends that the circumstances surrounding the erasure of the video—and Costco's failure to provide a reasonable explanation for the deletion—“creates a presumption of bad faith.” Mot. Sanctions ¶¶ 12, 8. But Costco argues that Duron has not shown that it intentionally deleted the video in bad faith. Resp. Mot. Sanctions ¶¶ 5–9. “Bad faith, in the context of spoliation, generally means destruction for the purpose of hiding adverse evidence.” Van Winkle, 82 F.4th at 375 (quoting Guzman, 804 F.3d at 713). Mere negligence is thus insufficient to establish bad faith. Coastal Bridge, 833 F. App'x at 573 (citing Catoire v. Caprock Telecomm. Corp., No. 01-cv-3577, 2002 WL 31729484, at *1 (E.D. La. Dec. 2, 2002)). However, bad faith may be inferred from the circumstances surrounding the destruction, or from explanations of the reasons for destroying evidence that lack credibility. Disedare v. Brumfield, No. 22-cv-2680, 2024 WL 1526699, at *12 (E.D. La. Apr. 9, 2024); see also In re Enron, 762 F. Supp. 2d at 963 n.13. And “[i]f a genuine dispute of material fact exists as to bad faith, a jury should make that determination.” Van Winkle, 82 F.4th at 378. Here, several factors support a finding of bad faith. Duron's counsel sent a preservation letter to Costco within a week of her fall, directing it to retain all evidence, including all “video recordings” “related to the subject incident.” Mot. Sanctions Ex. C. Costco also has an internal policy requiring that “[s]urveillance video must be retained as evidence following a bodily injury incident regardless of whether it captures the incident.” Id. at Ex. E. Courts have held that a company's failure to instruct employees to preserve evidence as requested in a preservation letter can support a finding of bad faith, even if the destruction was part of a routine policy. Disedare, 2024 WL 1526699, at *12 (collecting cases); Miramontes v. Peraton, Inc., No. 21-cv-3019, 2023 WL 3855603, at *6 (N.D. Tex. June 6, 2023) (citing Swofford v. Eslinger, 671 F. Supp. 2d 1274, 1280–81 (M.D. Fla. 2009)). Costco's actions go a step further, as it not only failed to preserve the footage despite a preservation letter,[2] but also apparently deleted it in direct violation of its own internal policy requiring retention of surveillance video after a bodily injury. Additionally, Costco has not provided a clear or consistent explanation for why it failed to retain the video. In its Response to Duron's Motion, it simply states that it “negligently” failed to preserve the footage, without offering any details. Resp. Mot. Sanctions ¶ 11; id. ¶ 6 (similar). Its corporate representative testified that: I looked into that, actually, while all this was going on, and we failed to preserve the video. Blanca should have requested it from a Senior Manager at the time. I can only guess that because of the increase in foot traffic in sales that she wasn't able to make the request, and to be specific, I don't know why it didn't happen. I just know that it didn't. *9 Vasquez Dep. 244:15–22. Yet, in response to Duron's Interrogatory asking whether Costco had deleted or failed to preserve any video footage, Costco initially answered only that it “does not have any video footage of the subject occurrence.” Resp. Mot. Summ. J. Ex. 2 (“Interrogs.”), at 9. Even after Magistrate Judge Miguel Torres explained that Duron had asked whether the footage ever existed—not merely whether Costco currently possessed it—and “instructed Costco to answer Duron's actual question,” Costco repeated this nonresponsive answer. See Oct. 7, 2024, Order 10, ECF No. 102. It was only after this Court ordered Costco to “answer the question asked,” see id., that Costco claimed that it did not preserve the footage because “the camera did not capture the area where [Duron] identified she allegedly slipped and fell.” Interrogs. 10. Costco has thus alternated between (1) refusing to answer whether they deleted the video, (2) claiming that the video was negligently lost, and (3) asserting that it intentionally failed to preserve it because it did not capture Duron's fall. These shifting and inconsistent explanations resemble those in Van Winkle, where a trucking company failed to retain a blown out tire and later provided contradictory accounts of whether it had a preservation policy. 82 F.4th at 376–77. The Fifth Circuit reversed the district court's denial of spoliation sanctions, finding that the defendant's inability to explain what happened to the evidence created a factual dispute as to bad faith. Id. at 377, 379. There is at least as much evidence of bad faith here as in Van Winkle. Given the preservation letter, Costco's stated policy requiring retention of incident-related video, its repeated failure to directly answer Duron's Interrogatory about whether footage ever existed, and its changing explanations for deleting the video, sufficient circumstantial evidence exists to create a genuine dispute of material fact as to whether Costco acted in bad faith. ii. Relevance of Deleted Footage Next, Costco argues that the deleted footage is irrelevant to Duron's claims because the camera's position meant that it would not have captured her actual fall or anything else of consequence. Resp. Mot. Sanctions ¶ 3. Duron contends that even if the incident itself was not recorded, the footage could have provided crucial context, showing weather conditions, foot traffic, employee presence, grocery cart movement, and the aftermath of the fall. Mot. Sanctions ¶ 13. A recent Fifth Circuit decision, Miller v. Michaels Stores, Inc., 98 F.4th 211 (5th Cir. 2024), resolved this same issue on remarkably similar facts. There, the plaintiff slipped in a store's entryway during a rainstorm and sought an adverse inference based on the defendant's failure to preserve purportedly relevant footage. Id. at 214. The district court denied the motion, reasoning that the missing footage was irrelevant because it did not capture the fall itself. Id. at 215. The Fifth Circuit disagreed, holding that footage “very close to the spot” of the fall could still be highly relevant, as it might have shown, for example, another shopper slipping or shaking off a wet umbrella. Id. at 219. Although the court ultimately rejected the plaintiff's spoliation argument due to a lack of evidence that any footage was actually deleted, its relevance holding confirms that missing footage can be significant even if it does not depict the fall itself. Id. *10 Here, as the Court expands upon in its analysis of Costco's Motion for Summary Judgment, the missing footage could have plausibly supported Duron's claims and undermined Costco's defense. According to Costco, the camera at issue is located “in the vestibule area” and “solely captures the activity coming in and out of the small door that is to the side of the main exit garage door.” Interrogs. 10. A photograph attached to this explanation indicates that Duron fell just in front of the main exit door, which appears to be at most ten feet from the camera's field of view. See id. Because it would show an area of the vestibule “very close to the spot” where Duron fell, the camera footage could have been relevant to one of the critical issues in this litigation: whether the accumulation of snow or water was naturally occurring or instead resulted from tracked-in slush from foot traffic, grocery carts, or similar. See Miller, 98 F.4th at 219. For example, the footage could have shown employees or other customers coming in and out of the small door, and whether they were tracking snow or water with their feet, clothing, or, just as the Miller court speculated, by shaking off umbrellas. See id. The footage could have also potentially shown the movement of grocery carts and whether they were laden with snow—even if they were not pushed through the door, they could have been pushed past it, within the camera's field of view. Therefore, because a reasonable jury could find that Costco deleted the footage in bad faith, and because the footage could be relevant to Duron's claims, an adverse inference instruction will likely be warranted, if supported by similar evidence at trial. Accordingly, for purposes of summary judgment, the Court assumes that the contents of the deleted footage are unfavorable to Costco. See Van Winkle, 82 F.4th at 382 (citing Whitt v. Stephens County, 529 F.3d 278, 285 (5th Cir. 2008)); see, e.g., Jean-Laurent v. Bowman, No. 12-cv-2954, 2014 WL 4662221, at *4 (E.D.N.Y. July 7, 2014), adopted, 2014 WL 4662232 (Sept. 18, 2014). b. Other Evidentiary Objections Next, Duron acknowledges that the disputes over Costco's failure to timely identify a third employee and its alleged misrepresentations regarding a “Safety/Director Coordinator” are a “waste of the [C]ourt's time.” Mot. Sanctions ¶ 21. She purports to raise these issues only to ensure the Court considers the “totality of the circumstances” when assessing potential sanctions. Id. ¶¶ 21, 26. Costco has already been sanctioned for not identifying all employees present on the day of the incident and for repeatedly providing inadequate responses to Duron's Interrogatory regarding whether it failed to preserve relevant video footage. Oct. 7, 2024, Order. Costco was ordered to pay all reasonable costs and fees incurred by Duron due to these failures. Id. at 14. Duron's Motion for Attorney Fees, ECF No. 114, seeking adjudication of the specific amount of reasonable costs and fees, remains pending. Further, as explained, whether Costco deleted the footage in bad faith remains a material issue of fact, leaving open the possibility of an adverse inference instruction. Because an adverse inference instruction is an “ ‘extreme’ sanction,” Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 340 n.5 (M.D. La. 2006) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 219–20 (S.D.N.Y. 2003)), and because Costco is already subject to monetary sanctions for this conduct, the Court declines to impose additional sanctions at this time. Accordingly, Duron's additional sanctions requests are denied. C. Analysis: Costco's Motion for Summary Judgment Because Costco filed its Motion for Summary Judgment while its Motion to Dismiss was still pending, it seeks summary judgment on all of Duron's claims, including her negligence per se claim, which the Court has since dismissed. See Duron, 2024 WL 3489490, at *6. Accordingly, the Court considers Costco's Motion only as to Duron's premises liability and gross negligence claims. 1. Premises Liability First, Costco seeks summary judgment on Duron's premises liability claim, contending that the snow in its vestibule was not an unreasonably dangerous condition as a matter of law and that, even if it were, it had no duty to take precautions because the hazard was open and obvious. Mot. Summ. J. ¶¶ 14–19; Reply Mot. Summ. J. ¶¶ 28–30. A plaintiff can bring a premises liability claim where they were injured due to defects on a defendant's property. Chowdury v. Wal-Mart Stores Tex., LLC, No. 19-cv-3870, 2019 WL 13190677, at *2 (S.D. Tex. Nov. 15, 2019). “Texas courts have consistently treated ‘slip/trip-and-fall’ cases as premises liability cases.” Munai v. Wal-Mart Stores Tex., LLC, No. 22-cv-2365, 2024 WL 1998135, at *2 (S.D. Tex. Apr. 12, 2024) (citations omitted), adopted, 2024 WL 1997125 (May 6, 2024). *11 To establish a premises liability claim, a plaintiff must show that the defendant: (1) owed a duty of care; (2) breached that duty; and (3) the breach caused the plaintiff's damages. Id. at *3 (citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010)). Costco does not dispute that it owed Duron a duty of care—both parties agree that she was an invitee. PUF ¶ 1; PUF Resp. ¶ 1. A landowner's duty to an invitee is to either make safe or warn against concealed, unreasonably dangerous conditions that the landowner knows or reasonably should know about, but the invitee does not. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015) (collecting cases). Further, Costco does not dispute that, if it breached its duty, the breach caused Duron's injuries. See generally Mot. Summ. J. Thus, the only issue is whether Costco breached its duty of care to Duron. To establish a breach, a plaintiff must show: (1) the owner had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm; and (3) the owner failed to exercise reasonable care to reduce or eliminate the risk. Torres v. Hobby Lobby Stores, Inc., No. 3:13-cv-187-KC, 2013 WL 6157916, at *3 (W.D. Tex. Nov. 22, 2013) (citing Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998)). Costco challenges only the latter two elements. Mot. Summ. J. ¶¶ 14–19; Reply Mot. Summ. J. ¶¶ 12–14, 24–30. a. Unreasonable Risk of Harm Costco argues that the “slush substance” on which Duron slipped resulted from a “naturally occurring condition (a snowstorm),” and thus, as a matter of law, could not pose an unreasonable risk of harm. Mot. Summ. J. ¶¶ 12, 19. Duron concedes that if the snow and water was the result of a purely natural accumulation, then her claim would be barred. Resp. Mot. Summ. J. ¶¶ 11–19. But she disputes that this was the case. Id. In her Amended Complaint, Duron alleged that the substance in the vestibule had been tracked and carried into the store by other customers. FAC ¶ 6. In her Response to Costco's Motion for Summary Judgment, Duron expands on these allegations, asserting that the evidence raises a genuine issue of material fact as to whether the snow and ice had been tracked inside not just by customers, but by Costco's own employees. Resp. Mot. Summ. J. ¶ 5. Specifically, she claims that Costco employees contributed to the hazardous conditions by bringing in shopping carts covered in snow, which then fell or melted and dripped onto the entrance area floor.[3] Id. ¶ 9. A condition presents an unreasonable risk of harm when “there is sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.” Solorzano v. Wal-Mart Stores, Inc., No. 7-cv-1431, 2008 WL 8053435, at *2 (S.D. Tex. May 5, 2008) (quoting Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970)). Even so, Texas courts have consistently held that naturally occurring accumulations of rain, mud, and ice do not, as a matter of law, create an unreasonable risk of harm, because they are “beyond a landowner's control.” Rooney v. Costco Wholesale Corp., No. 19-cv-4536, 2021 WL 5155677, at *3 (S.D. Tex. June 4, 2021) (quoting Walker v. UME, Inc., No. 15-cv-271, 2016 WL 3136878, at *3 (Tex. App. June 3, 2016)). However, this rule applies only to outdoor accumulations that result solely from natural meteorological forces. Wal-Mart Stores, Inc. v. Sparkman, No. 13-cv-355, 2014 WL 6997166, at *3 (Tex. App. Dec. 11, 2014) (citing Callahan v. Vitesse Aviation Servs., 397 S.W.3d 342, 352–54 (Tex. App. 2013)). When human intervention causes or contributes to the accumulation—such as when water or ice is tracked inside by customers or employees—the accumulation is considered “unnatural” and may pose an unreasonable risk of harm. Id.; see also Lough v. Pack, No. 12-cv-336, 2013 WL 1149524, at *2 (Tex. App. Mar. 21, 2013). *12 Rooney and Sparkman provide helpful illustrations. In Rooney, the court granted summary judgment for the defendant because the plaintiff failed to present any evidence suggesting that the water accumulation on a covered concrete entryway was caused by anything other than natural rainfall. 2021 WL 5155677, at *3. By contrast, in Sparkman, the court upheld a judgment for the plaintiff where rainwater had accumulated inside the store, potentially because customers tracked it in. 2014 WL 6997166, at *3–4. Here, Duron arrived at Costco sometime between 10:00 and 10:30 a.m. on March 11. Resp. Mot. Summ J. ¶ 5; Incident Report. Costco has provided weather records showing that heavy snow fell from approximately 8:40 to 9:00 a.m., followed by a lull of lighter snow, before another period of heavy snowfall from 10:01 to 10:19 a.m., which tapered off again into lighter snow for the rest of the morning. Mot. Summ. J. Ex. C (“Weather Reports”), ECF No. 42-3. Costco also submitted photographs of the area where Duron fell, showing snow. Id. at Ex. F. And in her deposition, Duron testified that when she arrived, there was “heavy” snow “mixed with rain.” Duron Dep. 35:7–8. Costco argues that this evidence of an ongoing storm means that “there is no genuine issue of material fact” that Duron slipped due to a “naturally occurring condition.” Mot. Summ. J. ¶ 12. But Duron argues that human intervention—specifically, Costco patrons tracking in snow and employees bringing in carts covered in snow from outside—contributed to the accumulation in the vestibule, where she slipped. Resp. Mot. Summ. J. ¶ 5. In support, Duron provides photographic evidence of grocery cart tire marks and footprints in the vestibule. Id. ¶¶ 8–9; see also id. at Ex. 6. She also cites deposition testimony from a Costco employee who stated that, before the store opens in the mornings, employees retrieve shopping carts left in the parking lot and bring them into the vestibule for customers. Holder Dep. 146:20–23. Another employee testified that he does not recall anyone wiping down the carts before they were brought inside on the day of the incident. Id. at Ex. 4 (“Robles Dep.”), 333:13–26. Finally, the weather reports indicate that it had snowed heavily before Costco opened that day, supporting a reasonable inference that the carts were covered in snow when brought through the vestibule. See Weather Reports; Resp. Mot. Summ. J. ¶¶ 5–6. This case thus falls between Rooney and Sparkman. Unlike Rooney, Duron has presented significant evidence that the accumulation was caused by factors beyond natural meteorological forces. See 2021 WL 5155677, at *3. But unlike Sparkman, the accumulation occurred in the vestibule rather inside the store itself, making it more difficult to distinguish between natural and unnatural accumulation. See 2014 WL 6997166, at *3–4. This context highlights the potential import of the deleted surveillance video. The missing footage may have provided key insight—either by showing that snow and rain naturally blew or flowed under the awning to accumulate in the vestibule, or by showing that snow was tracked in by shoppers and carts. And, as explained, because the question of bad faith remains unresolved and must be decided by the jury—where a finding against Costco would warrant an adverse inference—the Court must infer at summary judgment that the footage would have been unfavorable to Costco. Accordingly, the Court assumes the footage would support Duron's claim that human intervention contributed to the hazardous conditions. “[A]n inference of spoliation, in combination with some (not insubstantial) evidence for the plaintiff's cause of action, can allow the plaintiff to survive summary judgment.” Van Winkle, 82 F.4th at 382 (quoting Whitt, 529 F.3d at 285). Here, an adverse inference instruction, in combination with the weather reports, photographs, and Robles and Holder's testimony about the shopping carts would together be sufficient evidence for a jury to reasonably conclude that the moisture on which Duron slipped had accumulated, in significant part, as a result of human intervention. See id.; Sparkman, 2014 WL 6997166, at *3–4; Vaculik v. Wal-Mart Stores Tex., LLC, No. 22-cv-1613, 2023 WL 3184573, at *4 (S.D. Tex. May 1, 2023) (denying summary judgment for defendant where “water was presumably carried in on the soles and shopping carts of other customers” to the enclosed entryway where the plaintiff fell). *13 Of course, the fact that the hazardous conditions were not purely a product of natural accumulation does not, by itself, mean that they were unreasonably dangerous—i.e., that a reasonable person should have foreseen a probability of harm. It simply means that the natural accumulation doctrine does not render them not unreasonably dangerous as a matter of law. Accordingly, whether the conditions were unreasonably dangerous remains subject to a genuine dispute of material fact, to be resolved by the factfinder at trial. See Shelton v. PF Westpond, LLC, No. 5:22-cv-973-OLG-HLB, 2024 WL 3408272, at *3 (W.D. Tex. June 13, 2024) (citing United Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 802 (Tex. 2022)) (“[W]hether a condition was unreasonably dangerous is normally a fact question for a jury.”), adopted, 2024 WL 3404666 (July 10, 2024). b. Reasonable Care Next, Costco argues that even if the slush posed an unreasonable risk of harm, it had no duty to reduce or eliminate the risk because the condition was “open and obvious.” Reply Mot. Summ. J. ¶¶ 28–30.[4] Duron responds that Costco still had a duty because the “necessary use” exception applies. Sur-Reply ¶¶ 11–13. As stated, Texas law requires a landowner to exercise reasonable care by addressing or warning against hidden dangers that create an unreasonable risk of harm, provided the landowner is aware or should be aware of the hazard and the invitee is not. Austin, 465 S.W.3d at 203. This duty is based on the premise that a “[l]andowner is typically in a better position than the invitee to be aware of hidden hazards on the premises,” and should thus take precautions to protect invitees. Id. (citing Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 747 (Tex. 1973)). But when a hazard is “open and obvious,” the landowner is no longer in a better position to discover it, eliminating the duty to warn or make safe. Id. Thus, if a defendant establishes that a condition was open and obvious, the burden shifts to the plaintiff to show that an exception applies that requires the landowner to take reasonable care nonetheless. Clark v. Wyndham Worldwide, Inc., No. 23-cv-1557, 2025 WL 28645, at *3 (N.D. Tex. Jan. 3, 2025). There are two such exceptions: (1) the criminal activity exception and (2) the necessary use exception. Phillips v. Abraham, 517 S.W.3d 355, 361 (Tex. App. 2017) (citing Austin, 465 S.W.3d at 204, 208). The necessary use exception applies when: (1) the invitee must use the area containing the dangerous condition and (2) the landowner should have anticipated that the invitee could not avoid the risk despite knowing of it. Id. (citations omitted). i. Open and Obvious Costco argues that the snowy and rainy conditions in its vestibule constituted an open and obvious risk. Reply Mot. Summ. J. ¶¶ 28–30. As noted, Costco provides photographic evidence from the day of the incident showing a thin layer of snow on the ground. Mot. Summ. J. Ex. F. Additionally, in her deposition, Duron repeatedly acknowledged that she was aware of the poor weather conditions before and at the time of her fall. When asked what she recalled about the weather that day, she described it as “snowing, snow showers, strong.” Duron Dep. 29:11–15. She also stated that when she arrived at Costco, she observed “snow mixed with rain” coming down “heavy.” Id. at 35:5–8. She further described the Costco parking lot as having a “lot of snow,” estimating the depth as more than the width of one finger. Id. at 37:20–21. *14 Courts have repeatedly held that accumulated rain, snow, and similar conditions are open and obvious. For example, in Rooney, the court held that the defendant had no duty to warn of a wet concrete walkway because the evidence showed that the condition was open and obvious. 2021 WL 5155677, at *4 (citing Austin, 465 S.W.3d at 198). There, photographic evidence confirmed that the concrete was visibly wet, and the plaintiff admitted knowing that it had been raining “hard” before her fall. Id. The court concluded that the defendant was thus “in no better position to discover the allegedly unreasonably dangerous condition” than the plaintiff and granted summary judgment. Id.; see also Estes v. Wal-Mart Stores Tex., L.L.C., No. 16-cv-2057, 2017 WL 2778108, at *2–3 (N.D. Tex. June 27, 2017) (similar). Here, too, Duron has put forth no summary judgment evidence to dispute that the condition was open and obvious. See generally Resp. Mot. Summ. J; Sur-Reply. Meanwhile, Costco's evidence shows that the Duron was aware of the snow and wet conditions, meaning that Costco was not in a better position to protect her from the risk of slipping. Accordingly, the Court finds that the danger was open and obvious. ii. Necessary Use Exception But Duron argues that the open and obvious rule does not relieve Costco of liability because the necessary use exception applies. Sur-Reply ¶¶ 11–14. Specifically, she contends that she had no choice but to walk through the vestibule to enter the store, and that Costco should have anticipated this. Id. The first element of the necessary use exception requires the plaintiff to show that encountering the hazardous condition was unavoidable. Phillips, 517 S.W.3d at 361. Neither the Fifth Circuit nor the Texas Supreme Court has applied the necessary use exception, and lower courts have taken varying approaches in analyzing this element. Some courts have questioned whether the plaintiff needed to visit the premises at all. For example, in Quinones v. Wal-Mart Stores Tex., L.L.C., the court found the exception inapplicable because the plaintiff entered the store in which he slipped “by purely voluntary choice” to purchase clothing. No. 17-cv-477, 2018 WL 7253959, at *1, 10 (S.D. Tex. Dec. 27, 2018), aff'd, 786 F. App'x 20 (5th Cir. 2019). Most courts, however, focus on whether the plaintiff had to navigate the premises in a way that exposed them to the hazardous condition, without questioning the necessity of their visit. In Bisacca v. Pilot Travel Centers, LLC, the plaintiff slipped while exiting a convenience store. 476 F. Supp. 3d 429, 432 (N.D. Tex. 2020). The court examined whether he “could not have [exited] the store using [an]other entrance,” rather than whether his visit itself was necessary. Id. at 437. Similarly, in Knudson v. Dollar Tree Stores, Inc., the plaintiff tripped over a box while shopping. No. 17-cv-635, 2018 WL 2735406, at *1 (S.D. Tex. June 7, 2018). The court rejected the necessary use exception but focused on whether the plaintiff had to walk through that specific aisle—not whether she had to be in the store at all. Id. at *3; see also Kennedy v. Wal-Mart Stores Tex., LLC, No. 19-cv-587, 2020 WL 1943357, at *2–3 (Tex. App. Apr. 23, 2020) (considering whether the plaintiff had alternative ways of retrieving the bottle of wine that injured her, not whether she needed wine in the first place). Duron testified that she went to Costco to purchase grocery items such as “milk, ham, [and] eggs.” Duron Dep. 29:18–24. It would be reasonable to conclude that the exigencies of feeding oneself might require venturing out into a storm to purchase perishable food. See Quinones, 2018 WL 7253959, at *10. But under the prevailing approach, the necessity of Duron's visit to Costco is irrelevant. Instead, the key question is whether she had a reasonable alternative to encountering the hazardous condition, in order to accomplish her purpose of entering the Costco store. See, e.g., Bisacca, 476 F. Supp. 3d at 437. The Court finds this approach more persuasive. *15 And Duron presents evidence that she had to cross the vestibule to enter the store, citing testimony from Costco's corporate representative confirming that “you'd have to cross the vestibule” to enter. Sur-Reply ¶ 12. Because it is undisputed that crossing the vestibule was the only way to access the entrance, Duron had no reasonable alternative route, and the first prong of the necessary use exception is satisfied. See, e.g., Palacios v. Lowe's Home Center, LLC, No. 22-cv-212, 2024 WL 4101917, at *3 (S.D. Tex. July 26, 2024). To establish the second element, Duron must show that Costco should have anticipated that she could not avoid the risk. Phillips, 517 S.W.3d at 361. She states that Costco knew customers had to cross the vestibule to enter and that it was aware of the serious risk of injury from slipping on a wet surface. Sur-Reply ¶¶ 12–13. Costco does not appear to contest this, nor does it appear plausible that it could do so. See Reply Mot. Summ. J. ¶¶ 24–30. Doubtless, Costco was aware that its store has but one public entrance, which its customers must use. See, e.g., Palacios, 2024 WL 4101917, at *3. In sum, genuine disputes of material fact exist as to whether the conditions in Costco's vestibule posed an unreasonable risk of harm and whether Duron had to walk through the vestibule, making the hazard unavoidable despite being open and obvious. Accordingly, a dispute remains as to whether Costco breached its duty of care to Duron as an invitee. And because Costco does not dispute that, if a breach occurred, it caused Duron's injury, it is not entitled to summary judgment on her premises liability claim, and the Motion for Summary Judgment is denied in part. 2. Gross Negligence Finally, Costco argues that Duron's gross negligence claim fails because her premises liability claim fails and, alternatively, because she lacks competent evidence that Costco was aware of the alleged hazard yet proceeded with conscious indifference. Mot. Summ. J. ¶ 13. Because Duron's premises liability claim survives, the Court only addresses Costco's second argument.[5] In addition to actual damages, a plaintiff in a premises liability case may recover exemplary damages if they prove by clear and convincing evidence that the defendant was grossly negligent. Kent v. Wal-Mart Stores Tex., LLC, No. 17-cv-211, 2018 WL 953348, at *2 (S.D. Tex. Feb. 20, 2018) (citing Tex. Civ. Prac. & Rem. § 41.003(a)(3)). To establish gross negligence, a plaintiff must prove two additional elements. Oliver v. Wal-Mart Stores Tex., LLC, 748 F. Supp. 3d 433, 439 (N.D. Tex. 2024) (citing Austin, 465 S.W.3d at 196 n.2). First, the defendant's act or omission must have created an extreme degree of risk—not just a remote possibility of injury or a high probability of minor harm, but a likelihood of serious injury. Id.; Abdallah v. Life Time Fitness, Inc., No. 22-cv-976, 2024 WL 726290, at *3 (S.D. Tex. Jan. 23, 2024) (citing Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014)), adopted, 2024 WL 943460 (Mar. 5, 2024). Second, the defendant must have had actual, subjective awareness of the risk but proceeded with conscious indifference to others’ safety. Oliver, 748 F. Supp. 3d at 439. A defendant need not anticipate the exact manner of injury or identify the specific individual who would be harmed. Kent, 2018 WL 953348, at *3 (citing U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 139 (Tex. 2012)). *16 Because the purpose of punitive damages is to protect society by punishing the offender—rather than to compensate the injured party—a corporation may be held liable only if it committed the gross negligence itself. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex. 1997) (citing Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 403 (1934)); see also Oliver, 748 F. Supp. 3d at 439 (citing Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998)). And because corporations act through agents, liability attaches only if the corporation: (1) authorized or ratified an agent's gross negligence, (2) was grossly negligent in hiring an unfit agent, or (3) committed gross negligence through a vice principal. Oliver, 748 F. Supp. 3d at 439 (citing Ellender, 968 S.W.2d at 921). Vice principal status is reserved to four categories of corporate agents: (a) corporate officers; (b) those with authority to hire, direct, and fire employees; (c) those performing nondelegable or absolute duties of the corporation; and (d) those entrusted with managing the entire business or a whole department or division. Id. (citing Hammerly, 958 S.W.2d at 391). An employee's title alone does not determine whether they are a corporate officer, and a supervisory role does not automatically confer vice principal status. McDaniel v. Dindy, 673 S.W.3d 24, 33 (Tex. App. 2023) (citation omitted). Additionally, because gross negligence must be proven by clear and convincing evidence, courts apply a heightened standard when assessing whether a jury could reasonably find for the plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (higher evidentiary burdens “should have a corresponding effect on the judge when deciding whether to send the case to [the] jury”); Partida Aranda v. YRC Inc., No. 18-cv-494, 2019 WL 2357528, at *3 (N.D. Tex. June 4, 2019) (clear and convincing standard requires showing that a fact is “highly probable” at summary judgment, not merely more likely than not (citation omitted)). As discussed, Duron has sufficiently established a premises liability claim, and it is possible that a jury could find that Costco employees acted with gross negligence by failing to remove the wet, slushy conditions or adequately warn of their presence. See, e.g., Oliver, 748 F. Supp. 3d at 440 (issue of fact as to whether defendant was grossly negligent for not removing liquid on floor that plaintiff slipped on); see also Castro v. Wal-Mart Real Est. Bus. Tr., 645 F. Supp. 3d 638, 650 (W.D. Tex. 2022). But Duron must also show that Costco itself—not just its employees—was grossly negligent. Her only argument on this point is a conclusory assertion that Costco “knowingly ignored extremely dangerous conditions, and neither warned nor fixed the danger[ous] condition, which it knew could seriously injure [Duron],” and that it “authorized, ratified, and/or approved” this conduct. FAC ¶¶ 19–20; Resp. Mot. Summ. J. ¶¶ 25–28. But she provides no evidence that Costco authorized or ratified grossly negligent conduct or was grossly negligent in hiring unfit employees. See generally Resp. Mot. Summ. J. Duron does offer evidence that Eduardo Robles was a Costco “General Manager” and was present on the day of the incident. Id. ¶ 8; Interrogs. 4, 8. She also cites Robles’ testimony that he did not recall instructing anyone to wipe down grocery carts before bringing them into the vestibule, Robles Dep. 333:13–19, which the Court assumes for purposes of this analysis could suffice to establish a genuine dispute of material fact as to gross negligence. But Robles’ title alone does not establish that he was a vice principal, and Duron presents no evidence that he was entrusted with the responsibilities and authority of one. She does not argue—let alone provide evidence—that Robles had the power to hire or fire employees, managed an entire department of the business, or performed nondelegable corporate duties. See generally Resp. Mot. Summ. J. This is thus insufficient to establish Costco's gross negligence liability, particularly given Duron's elevated burden of proof. See, e.g., Manzano-Hernandez v. Jones Bros. Dirt & Paving Contractors, Inc., No. 18-cv-3, 2019 WL 3227913, at *6 (Tex. App. July 18, 2019) (recognizing that title “general manager,” alone, did not establish vice principal status) (citation omitted); see also, e.g., Sw. Bell Tel. Co. v. Reeves, 578 S.W.2d 795, 800–01 (Tex. Civ. App. 1979), overruled in part on other grounds by Hous. Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668 (Tex. 1999). *17 In short, Duron has presented no competent evidence—much less the requisite clear and convincing evidence—that Costco itself acted with gross negligence. Accordingly, Costco is entitled to summary judgment on her gross negligence claim, and the Motion for Summary Judgment is granted in part. III. CONCLUSION For the foregoing reasons, Costco's Motion for Summary Judgment, ECF No. 42, is GRANTED in part and DENIED in part. The Motion is DENIED as to Duron's premises liability claim, which remains pending. The Motion is GRANTED as to her gross negligence claim, which is dismissed. IT IS FURTHER ORDERED that Costco's Amended Motion to Strike Summary Judgment Evidence, ECF No. 138, is DENIED. IT IS FURTHER ORDERED that Duron's Motion for Sanctions, ECF No. 141, is GRANTED in part and DENIED in part. The Court will issue a trial preparation order separately. SO ORDERED. Footnotes [1] While significant portions of the Deposition of Michael Vasquez are excerpted as Exhibit 1 to Plaintiff's Summary Judgment Response, ECF No. 135-1, this particular excerpt only appears as a screen capture of the transcript inserted into the body of the Sur-Reply brief without a page number reference. Therein, Vasquez attests: “Yeah, whether you're entering through the entrance, or even the Membership door, you'd have to cross the vestibule, yes, sir.” Sur-Reply ¶ 12. [2] While the exact timing of the deletion is unclear, Costco does not argue or submit any evidence showing that it occurred in the few days after the incident but before the preservation letter was sent. And, in response to a question mentioning the “spoliation letter,” Vasquez testified that Costco “failed to preserve the video.” Vasquez Dep. 244:15–22. In light of this testimony, given that the preservation letter was sent just a week after Duron's fall, and absent any evidence to the contrary, the Court finds there is at least a genuine dispute as to whether the video was deleted after the letter was sent. [3] While it is “well established ‘that a plaintiff cannot allege facts to raise a new claim for the first time in a memorandum in opposition to a motion for summary judgment,’ ” Sede v. Bullock, 734 F. Supp. 3d 524, 532 (E.D. La. 2024) (citations omitted and emphasis added), Duron is not asserting a new claim. Rather, she has introduced additional facts that support her existing premises liability claim. Although the better practice may have been to file a second amended complaint, the newly introduced facts are logically connected to those in Duron's operative Complaint, could have been fairly uncovered through discovery, and are thus properly considered by the court. See Rezaipour v. County of Los Angeles, No. 12-cv-5005, 2014 WL 12674923, at *4 (C.D. Cal. July 10, 2014), aff'd, 655 F. App'x 552 (9th Cir. 2016); see also Save our Cemeteries, Inc. v. Archdiocese of New Orleans, Inc., 568 F.2d 1074, 1077 (5th Cir. 1978). [4] Costco did not raise this argument in its Motion for Summary Judgment, and “[a]rguments raised for the first time in a reply brief are generally waived,” Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010) (citations omitted). But, rather than summarily excluding the argument, the Court granted Duron leave to file a sur-reply. See Mar. 12, 2025 Order (citing Mission Toxicology, LLC v. Unitedhealthcare Ins. Co., 499 F. Supp. 3d 350, 359 (W.D. Tex. 2020)). Accordingly, as the Court previously informed the parties, it considers both Costco's “open and obvious” argument and Duron's response thereto in her Sur-Reply. See id. at 2. [5] Costco made a similar argument in its Motion to Dismiss, which the Court declined to resolve because the better weight of authority holds that entitlement to punitive damages as a gross negligence remedy is not a “claim” that one can fail to state. Duron, 2024 WL 3489490, at *4; accord Flippo v. Walmart Inc., No. 21-cv-16, 2021 WL 12315057, at *2 (N.D. Tex. Aug. 12, 2021). This issue is, however, capable of resolution at summary judgment. See, e.g. Ewing v. Iron Tiger Logistics, No. 10-cv-1211, 2011 WL 13229253, at *6 (N.D. Tex. Apr. 5, 2011); McDorman ex. Rel. Connelly v. Tex.-Cola Leasing Co. LP, LLP, 288 F. Supp. 2d 796, 810 (N.D. Tex. 2003).