Ritter v. Gas-Mart USA, Inc.

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NOT DESIGNATED FOR PUBLICATION

No. 120,782

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STANLEY ALAN RITTER,
Appellant,

v.

GAS-MART USA, INC,
HEARTLAND RESTAURANTS, LLC,
and
SUMMIT RESTAURANT HOLDINGS, LLC,
Appellees.


MEMORANDUM OPINION

Appeal from Chase District Court; W. LEE FOWLER, judge. Opinion filed March 6, 2020.
Reversed and remanded with directions.

Thomas J. Dickerson, of Dickerson Oxton, LLC, of Kansas City, Missouri, for appellant.

Patric S. Linden, Kevin D. Case, and Michael C. Skidgel, of Case Linden P.C., of Kansas City,
Missouri, for appellee Gas-Mart USA, Inc.

Janette C. Gaddie, of Law Office of Pamela W. Brown, of Overland Park, for appellees
Heartland Restaurants, LLC, and Summit Restaurant Holdings, LLC.

Before ARNOLD-BURGER, C.J., HILL and GARDNER, JJ.

PER CURIAM: Stanley Alan Ritter slipped on black ice in the semi-truck parking
area at the Matfield Green Service Station on the Kansas Turnpike (Truck Stop). He filed
a negligence action against the operators of the facilities at the Truck Stop, arguing they
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breached a duty of reasonable care for failing to ensure the removal of the snow and ice
from the parking lot. The district court granted summary judgment in the operators' favor,
finding they owed no duty to address the snow and ice conditions in the semi-truck
parking area because the plain language in their lease agreements with the Kansas
Turnpike Authority (KTA) absolved them of responsibility for maintenance of the semi-
truck parking area. Ritter appeals, arguing that (1) the district court improperly relied on
inadmissible evidence in considering the summary judgment motion and (2) the district
court erred because the operators' ownership, possession, or control of the area where
Ritter fell was unclear given the ambiguity of the maintenance provisions in the lease
agreements. After a careful review of the issues presented, we find that viewing the
evidence in the light most favorable to the party opposing summary judgment, as we
must do, there are material issues of fact remaining that preclude summary judgment at
this stage of the proceedings. As a result, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

On a winter evening in 2014, Ritter parked his tractor-trailer in the semi-truck
parking lot at the Truck Stop. While performing a pretrip inspection on his tractor-trailer
the next morning, Ritter slipped on black ice, suffering injuries.

Ritter timely filed a personal injury lawsuit, asserting negligence claims against,
among others, the parties to this appeal: Gas-Mart USA, Inc., who operated the gas
station; and Heartland Restaurants LLC and Summit Restaurant Holdings LLC, who
operated the Hardee's and Dunkin' Donuts food services (Operators). Ritter argued the
Operators owed a duty of reasonable care to maintain the parking lots and to ensure they
were in a reasonably safe condition for customers and members of the public and they
breached their duty by failing to address or remove the ice from the parking lot resulting
in Ritter's injuries.

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Heartland and Summit (Heartland) filed a joint answer in February 2016, asserting
as an affirmative defense that Ritter's petition failed to state a claim upon which relief
could be granted because Heartland did not have a responsibility to maintain the semi-
truck parking area where Ritter fell. Shortly thereafter, Gas-Mart submitted a notice of
bankruptcy, ultimately leading to an automatic stay order by the district court that
remained in effect for a year.

During the stay, Ritter's counsel contacted Alan Streit, the general counsel for
KTA, to request the original version of the lease agreement entered by KTA and Gas-
Mart (Gas-Mart Lease). Streit first emailed a color copy of the Gas-Mart Lease that
included a black and white copy of the Matfield Green and Towanda Service Area Map
(Map). Ritter's counsel emailed back to request "an exact color copy" of the Gas-Mart
Lease. The next day, Streit sent Ritter's counsel the same copy of the original Gas-Mart
Lease along with a yellow highlighted Map.

The case proceeded toward resolution after the bankruptcy court granted Ritter's
motion to lift the stay. Gas-Mart submitted its answer asserting similar defenses as
Heartland, specifically Gas-Mart did not owe Ritter a duty of reasonable care because
Gas-Mart did not control or have responsibility over the semi-truck parking lot area
where Ritter fell.

Later that month, Ritter served a subpoena on KTA requesting "[a]n exact color
copy" of the Gas-Mart Lease. Robert Pettersen, a KTA credit manager and authorized
custodian of records, submitted the copy and an affidavit as requested.

Heartland moves for summary judgment.

Just a month later and well before the end of discovery, Heartland moved for
summary judgment. The motion asserted that Ritter failed to state a claim upon which
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relief could be granted because the semi-truck parking area where Ritter fell was not
owned, operated, or under Heartland's control. Heartland argued in a memorandum
supporting its motion that the lease between them and the KTA (Heartland Lease) did not
include the semi-truck parking area in its designated area of responsibility, so they owed
no duty of care to Ritter.

Ritter responded to Heartland's motion, generally objecting to the copy of the
Heartland Lease included with Heartland's motion for summary judgment and asserting
that a genuine factual dispute existed about the contents of the original lease because of
the varying versions produced during discovery. Ritter also asserted that the versions of
the Heartland Lease and an Operations and Use Agreement (OUA) attached to
Heartland's motion were not authenticated, thus making them inadmissible evidence. He
also submitted that Pettersen could not authenticate the documents because he lacked
personal knowledge and was not a competent witness based on his admitted mishandling
of records.

Ritter also disputed that Heartland was entitled to judgment as a matter of law. He
argued the Heartland Lease did not effectively release Heartland from its duty of
reasonable care as an occupier of the Truck Stop. Last, Ritter noted that even if the semi-
truck parking area where his injuries occurred had been KTA's sole responsibility, the
Heartland Lease still required Heartland to notify KTA "of the occurrence of any event or
condition, the responsibility or maintenance of which rests with the [KTA]."

In its reply, Heartland generally asserted that none of Ritter's factual claims were
relevant or material because he had received a copy of the Heartland Lease in August
2016 which contained the map attachment showing Heartland had no responsibility for
the semi-truck parking area. Finally, Heartland continued to assert it was entitled to
summary judgment.

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Ritter filed a surreply asserting that Heartland's response contained factual
inaccuracies. Ritter claimed that the communications with KTA counsel during the
bankruptcy stay did not involve the Heartland Lease at all because those communications
were only about the Gas-Mart Lease. Ritter repeated his objections to the authenticity of
the copy of the Heartland Lease referenced in Heartland's motion for summary judgment,
asserting there remained a factual dispute about which document constituted the original
Heartland Lease from 2013. Ritter continued his challenge over whether Pettersen's
affidavit was proper since Pettersen was not a corporate representative for KTA. Finally,
Ritter reiterated his arguments that the Heartland Lease imposed a duty upon Heartland,
including "the duty to notify the KTA of conditions, the maintenance or responsibility for
which lie with the KTA."

Gas-Mart moves for summary judgment.

In August 2018, before the district court ruled on Heartland's motion, Gas-Mart
filed its own motion for summary judgment, asserting it owed no duty to Ritter because
the area where he fell was not on premises leased by Gas-Mart. In a memorandum
supporting its motion, Gas-Mart asserted essentially the same uncontroverted facts
related to Ritter's fall in the semi-truck parking area at the Truck Stop as in Heartland's
motion for summary judgment.

Likewise, Gas-Mart argued it was entitled to judgment as a matter of law on
Ritter's negligence claim because the Gas-Mart Lease did not grant Gas-Mart possession
or control of the semi-truck parking stalls where Ritter fell. As a result, Gas-Mart argued
it owed no duty of care to Ritter. Gas-Mart attached several exhibits to its memorandum
to support its motion for summary judgment but mainly relied on three exhibits:

• Exhibit 5, a 16-page copy of the Gas-Mart Lease, which Gas-Mart asserted was
a copy of the document taken from the KTA's physical file produced at
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Pettersen's deposition. This copy of the Gas-Mart Lease included a Bates
number stamp in the bottom right from GMU 000034 through GMU 000048.
The exhibit also included a copy of the Truck Stop map attachment with a
yellow-highlighted rectangle designating "OPERATORS AREA OF
RESPONSIBILITY MARKED IN YELLOW."

• Exhibit 6, a copy of the Truck Stop map attachment. This copy depicted the
same map as included in Exhibit 5.

• Exhibit 7, portions of the Pettersen deposition transcript taken in February
2018. Gas-Mart asserted that Pettersen "testified that he personally colored in
the yellow area of the Service Area Map, and personally made the handwritten
notations on the Service Area Map before the Lease was executed." Citing
Exhibits 6 and 7 as support, Gas-Mart asserted that "the parking stalls for semi-
trucks and trailers in the area surrounding the parking stalls on both the east
and west sides of the building are not located within [Gas-Mart]'s area of
responsibility in yellow, and thus are in the area of the KTA's responsibility."

Ritter objected on the basis that the version of the Gas-Mart Lease relied on in
Gas-Mart's motion for summary judgment was not a true and accurate copy of the Lease,
and he asserted that Gas-Mart's Exhibit 5 was inadmissible under the best-evidence rule.
Ritter also generally objected to the copy of the Gas-Mart Lease as included in Exhibit 5,
asserting that a genuine factual dispute existed because the versions of the lease provided
by Gas-Mart in discovery did not include any map attachment. Ritter continued in his
objection over whether Pettersen could authenticate the Gas-Mart Lease as a nonparty.




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District court grants summary judgment.

The district court conducted a hearing on Heartland's motion for summary
judgment in August 2018, only three days after Gas-Mart moved for summary judgment.
Ultimately, the district court found that summary judgment was warranted in Heartland's
favor based on the undisputed Heartland Lease and Map, which showed that Heartland
did not owe a duty to Ritter to maintain or control the site where he fell. In the journal
entry, the district court made the following factual findings and conclusions of law:

"1. [Ritter's] Petition, filed on January 5, 2016, asserted a sole cause of action for
negligence against [Operators] alleging that on January 11, 2014, Plaintiff
Stanley Ritter was injured when he slipped and fell on black ice while
performing a pre-trip inspection of his tractor-trailer where it was parked at the
[Truck Stop] on the Kansas Turnpike near El Dorado, Kansas.

"2. [Ritter's] Petition further alleged that all [Operators] were the owners and/or
operators of the businesses at the [Truck Stop], had control and maintenance over
the area where the fall occurred, and had a duty to exercise reasonable care in the
maintenance of the parking lots on their property to ensure the lots were
reasonably safe for customers and members of the public having access to those
areas.

"3. During his deposition, [Ritter] testified about the location of his fall, and marked
on Ritter Deposition Exhibit 6, an outer circle to designate the general area where
he parked, and an inner circle to designate the area where he fell.

"4. [Ritter] testified he did not fall on the sidewalk, in the area of the car parking
stalls in front of the building on the west side of the [Truck Stop] or in the drive
area between the semis [truck and trailers] and the car parking stalls.

"5. [Heartland] filed a motion for summary judgment on the grounds [Ritter's] claims
are barred for failure to state a claim upon which relief can be granted because
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[Heartland] did not own, possess or control the semi-truck parking lot where
[Ritter] stated he fell and therefore [Heartland] were not responsible for [Ritter's]
injuries and damages.

"6. In support of the motion for summary judgment, [Heartland] attached a copy of
the [Heartland Lease] which . . . states that 'The Operator's area of responsibility
at the service area (cleaning and policing, liability, replacement, repair and
maintenance) is specified in the attached [Map].'

"7. The [Heartland Lease] was assigned in December 2013 by Rising Stars, LLC to
HR Group MO, LLC (which subsequently changed its name to Heartland
Restaurants, LLC), and the KTA executed its Landlord Consent and Estoppel in
February 2014 and its Assumption and Consent on or about October 27, 2015.

"8. Pursuant to the [Heartland Lease], the [Map] defined the Operator's Area of
responsibility for cleaning and policing, liability, replacement, repair and
maintenance as the yellow area on the Map.

"9. Pursuant to the [Heartland Lease], the parking stalls for semi-trucks and trailers
in the area surrounding the parking stalls on both the east and west sides of the
building were not included in the designated area of responsibility for the
Operators.

"10. The area where [Ritter] testified he fell was not within the designated area of
responsibility for [Heartland], but rather the KTA.

"11. Contrary to arguments raised by [Ritter] in his Reply, Sur-Reply, and oral
argument by counsel, the Court finds the operative [Heartland Lease], which had
been assigned, made it clear that [Heartland] did not control and were not
responsible for cleaning and policing, liability, replacement, repair and
maintenance of the semi-tractor trailer parking lot where [Ritter] fell. Since the
Court finds the operative [Heartland Lease] itself was unambiguous, the [Map]
attachment is immaterial.

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"12. The KTA was entitled to enter into agreements with its tenant operators (and
their assignees) to designate areas of responsibility for the operators and those
areas of responsibility retained by the KTA. See Hall v. Quivira Square
Development Co., 9 Kan. App. 2d 243, 244, review denied 235 Kan. 1041
(1984), in which the Kansas Court of Appeals upheld a summary judgment in
favor of a shopping center tenant on the basis that the tenant owed no duty of
safety to an invitee who was injured in a parking lot that was under the control of
the shopping center owner. The appellate court examined the lease agreement
between the tenant in the shopping center, which designated that the parking lot
(among other places) [was] a common area for use of all the shopping center
tenants. Id. at 244. Further, the lease provided that the shopping center had sole
responsibility to make all repairs and perform all maintenance work in those
areas. Id. The Hall Court ultimately held that 'the shopping center landowner . . .
by its lease retained control and had the duty to maintain the common area,
which included the driveway and parking area where plaintiff fell, and which was
under the exclusive possession and control of [the shopping center].' Id. See also
Rogers v. Omega Concrete Systems, Inc., 20 Kan. App. 2d [1, 883] P.2d 1204
(Kan. App. 1994).

"13. A plaintiff in a premises liability negligence action must prove 'the existence of a
duty, breach of that duty, injury, and a causal connection between the duty
breached and the injury suffered.' Rogers[, 20 Kan. App. 2d 1], supra, citing
McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980 (Kan. 1991). 'Whether a duty
exists is a question of law. Whether the duty has been breached is a question of
fact.' Id., citing Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 792 P.2d 993
(Kan. 1990). 'It was thus the obligation of the [trial] court in the first instance . . .
to determine whether a duty existed. Without a duty, there could be no breach
which could support plaintiff's claim.' Id., citing Hackler v. U.S.D. No. 500, 777
P.2d 839 (1989) and Honeycutt v. City of Wichita, 251 Kan. 451, 836 P.2d 1128
(Kan. 1992).

"14. Based on the factual findings and conclusions of law set forth above, and after
considering the pleadings filed in support of and in opposition to the summary
judgment motion, including exhibits, and oral argument of counsel, which are all
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incorporated herein by reference, as well as a transcript of the hearing which
[Ritter] has requested, the Court concludes there is no genuine issue of material
fact to dispute that [Heartland] owed a duty of care to [Ritter] for the area where
he reported he fell. Rather, the KTA had possession and control over the area
where [Ritter] testified he fell. Thus, as a matter of law, [Ritter] cannot establish
the required element of the existence of a duty for his negligence cause of action
against [Heartland], which would allow the cause of action to go to a jury."

The district court granted Gas-Mart's motion for summary judgment four months
later in a memorandum decision adopting the findings of fact and conclusions of law in
the Heartland summary judgment order.

Ritter timely appeals from both rulings.

ANALYSIS

I. The district court erred in granting summary judgment to the Operators.

Ritter argues that because there were disputed issues of material fact about the
Operators' snow and ice removal obligations under the Gas-Mart and Heartland Leases,
the district court erred by granting summary judgment in Operators' favor. In response,
Operators assert there are no disputes of material fact from which a fact-finder could
determine Operators owed a duty of care to remove snow or ice from the semi-truck
parking area at the Truck Stop.

A. Our standard of review is de novo.

After parties to a dispute have had a chance to discover evidence, but before their
case goes to trial, a party may submit a motion to the trial court seeking summary
judgment. K.S.A. 2019 Supp. 60-256. The party seeking summary judgment must show,
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based on both parties' evidence, that there is no dispute as to any material fact and that
they are entitled to judgment as a matter of law. In other words, the moving party—here
the Operators—must show that there is nothing for the fact-finder to decide that would
make any difference to the outcome of the case. See Armstrong v. Bromley Quarry &
Asphalt, Inc., 305 Kan. 16, 24, 378 P.3d 1090 (2016).

The party opposing summary judgment, in this case Ritter, must point to evidence
questioning some material fact. If he does, then summary judgment must be denied so a
fact-finder can resolve the dispute. When ruling on a summary judgment motion, the
district court must view the evidence in the light most favorable to the party opposing the
motion—Ritter. On appeal from the grant of summary judgment, we apply the same
standards the trial court applied. See Fawcett v. Oil Producers, Inc. of Kansas, 302 Kan.
350, 358-59, 352 P.3d 1032 (2015). Because entry of summary judgment amounts to a
question of law—it entails the application of legal principles to uncontroverted facts—we
owe no deference to the trial court's decision, and our review is unlimited.

Resolving the summary judgment issue here also involves the interpretation of the
lease agreements between the Operators and the KTA. "[W]e exercise unlimited review
over the interpretation and legal effect of written instruments, and we are not bound by
the lower courts' interpretations of those instruments." Prairie Land Elec. Co-op v.
Kansas Elec. Power Co-op, 299 Kan. 360, 366, 323 P.3d 1270 (2014). Whether a written
instrument is ambiguous is a question of law subject to de novo review. Waste
Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 964, 298 P.3d 250 (2013).

Finally, to recover for negligence, Ritter must prove by a preponderance of the
evidence the existence of a duty, breach of that duty, injury, and a causal connection
between the duty breached and the injury suffered. Whether a duty exists is a question of
law. Whether the duty has been breached is a question of fact. See Williams v. C-U-Out
Bail Bonds, LLC, 310 Kan. 775, 450 P.3d 330, 340 (2019). Summary judgment in a
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negligence action is generally proper if the only questions presented are questions of law.
Martin v. Naik, 297 Kan. 241, 245, 300 P.3d 625 (2013).

The sole basis for the district court's summary judgment order and the only issue
before us is whether the Operators had a legal duty to remove snow and ice from the
semi-truck parking area at the Truck Stop. If they had no duty to remove snow and ice
from the semi-truck parking area, then summary judgment was proper. If they had a duty
or if there is insufficient evidence at this stage of the proceeding to determine whether
they had a duty, then summary judgment was in error. We will first examine the general
common law duty related to premises liability and then we will examine the unique
contract provisions that override that common law duty.

B. We review the common law of premises liability.
Ritter contends the Operators, as occupiers of the land at the Truck Stop, owed a
general duty of reasonable care and had a legal duty to maintain land at the Truck Stop
because it was in their possession or control. This claim accords with Kansas caselaw.

"[T]he general rule in Kansas is that the owner or occupier of real property owes a duty to
business invitees to maintain the premises in a reasonably safe condition. When real
property is leased to a tenant, the duty to maintain is on the lessee. It is equally well
settled that a lessor is liable for failure to maintain the leased area retained for the
common use of the lessor's tenants when the tenants and their customers are merely
entitled to use the common area." Hall v. Quivira Square Development Co., 9 Kan. App.
2d 243, 244, 675 P.2d 931, rev. denied 235 Kan. 1041 (1984) (shopper fell due to uneven
pavement in parking lot at retail mall).

Without a definition in the lease agreement, a common area may be defined as that
area used in common by different tenants and their respective guests or invitees. See
Trimble v. Spears, 182 Kan. 406, 409, 320 P.2d 1029 (1958).
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Ritter also asserts that the Operators had a legal duty to warn of any dangerous
condition that is either known to them or in the exercise of reasonable care should be
known to them. This too has support in Kansas caselaw. "[T]he key to ascertaining the
liability of a landlord and tenant for failure to maintain or failure to warn of a defect in a
common area is who occupies the common area with the intent to control it." Hall, 9 Kan.
App. 2d at 244.

The Operators agree that these underlying statements of law are well-settled. All
parties agree that the location where Ritter fell was the semi-truck parking lot on the west
side of the Truck Stop in a common area where semi-trucks park—separate from the
passenger car parking area next to the Operators' businesses.

But we agree with the Operators that the commercial lease provisions negotiated at
arm's length by the parties govern over any common law doctrine related to premises
liability. See Talley v. Skelly Oil Co., 199 Kan. 767, Syl. ¶ 1, 433 P.2d 425 (1967); TMD
Southglen II, LLC v. Parker, No. 109,484, 2014 WL 2589768, at *5 (Kan. App. 2014)
(unpublished opinion). Because the leases set out the respective duties of the Operators
for maintenance and snow removal, Ritter's claim rests on the interpretation of the leases.

C. We review the provisions of the lease agreement as they apply to snow
removal.

Whether the Operators owed a duty to Ritter depends on whether they exercised
ownership, possession, or control over the semi-truck parking lot at the Truck Stop.
Specifically, we must determine whether the Operators were responsible for removing
snow and ice from the location where Ritter fell under their respective lease agreements.

"'The primary rule for interpreting written contracts is to ascertain the parties'
intent. If the terms of the contract are clear, the intent of the parties is to be determined
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from the language of the contract without applying rules of construction.'" Peterson v.
Ferrell, 302 Kan. 99, 104, 349 P.3d 1269 (2015). Additionally,

"'[a]n interpretation of a contractual provision should not be reached merely by isolating
one particular sentence or provision, but by construing and considering the entire
instrument from its four corners. The law favors reasonable interpretations, and results
which vitiate the purpose of the terms of the agreement to an absurdity should be
avoided. [Citation omitted.]'" Waste Connections, 296 Kan. at 963.

Both the Heartland Lease and the Gas-Mart Lease contain the same language
about snow removal, maintenance, and repair, so there is no need to examine them
separately.

The leases reference and incorporate the Map. The leases state: "The drawing is
furnished for the purpose of showing the service area layout and the Operator's area of
responsibility." The Map depicted a topographical view of the Truck Stop with a yellow-
highlighted rectangle encompassing the restaurant, retail fuel establishment facilities, and
the surrounding parking lots. The Map states on its face that it is identifying "Operators
area of responsibility for cleaning and policing, liability, replacement, repair and
maintenance. Operators area of responsibility marked in yellow. KTA will be responsible
for the area not marked in yellow." The semi-truck parking area is clearly not in the
Operators' area of responsibility as designated on the Map. So we look to the lease to see
how snow and ice removal is treated.

The pertinent provision of the lease at issue is in numbered paragraph 10.

"10. Maintenance and Repairs: This section is divided into three general categories:
(a) buildings and related equipment; (b) retail fuel establishment equipment; (c)
leased premises.
. . . .
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"(a) Building and related equipment: This category shall include the service area
building, water supply, heating and air conditioning system, sewage disposal
systems and garbage disposal units. Unless otherwise stated, the operator is
reasonable for the maintenance of the facility inside their area of responsibility
(per the attached [Map]).
. . . .
"(b) Premises: The Operator's area of responsibility at the service area (cleaning
and policing, liability, replacement, repair and maintenance) is specified in the
attached [Map]. Operator agrees to maintain the premises inside their designated
area of responsibility in an attractive, clean, safe, and sanitary manner. Operator
shall police the areas outside the building, including entranceways, any patio
area, and adjacent sidewalks. Planting of shrubs, cutting of grass, and other
landscaping shall be the responsibility of Operator.

"The Operator shall be responsible for maintenance and replacement of sidewalks
and curb areas within areas defined in this contract to be maintained by
Operator. The Operator is responsible for maintenance and policing of trash
containers inside the defined area and dumpster areas including the dumpster
enclosure. The Operator is responsible for any debris, trash, or damage caused by
lack of attention to maintenance requirements specified in this contract.

"The Operator agrees to maintain janitorial services to keep all portions of the
service area inside their designated area of responsibility (per the attached
[Map]) clean and attractive at all times, to make adequate arrangements for the
collection of garbage, papers and trash, hosing down entrances and exits and such
other arrangements for general good housekeeping, which may be necessary. All
trash and garbage removal shall be at the expense of the Operator. The Operator
further agrees to maintain the interior lighting of the service area building,
outside lighting on the building, and lighting in the motor fuel vending area.

"The [KTA] agrees to maintain their designated area of responsibility (per the
attached [Map]) including the asphalt pavement, service roads, sewage
distribution system outside the physical dimensions of the leased area, and major
grass cutting ordinarily done by farm type tractors. Please note that all repair and
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replacement of the asphalt parking lot (inside and outside of the physical
dimensions of the leased area) will be the responsibility, and at the expense, of
the [KTA]. The Operator agrees to maintain all other exterior structures including
but not limited to the exterior of the building and including but not limited to all
maintenance functions hereinafter set out. IT IS EXPRESLY UNDERSTOOD
BETWEEN THE PARTIES THAT MAINTENANCE IS THE
RESPONSIBILITY OF THE OPERATOR EXCEPTING ONLY THOSE
LIMITED AREAS OF MAINTENANCE EXPRESSLY ASSUMED HEREIN BY
THE [KTA]. FURTHER, NOTHING IN THIS PARAGRAPH SHOULD BE
CONSTRUED TO EXCLUDE OPERATOR'S LIABILTY FOR DAMAGES
DONE TO THE PROPERTY MAINTAINED BY THE [KTA] IF SUCH
DAMAGE WAS A RESULT OF THE OPERATIONS OF THE OPERATOR.
THIS WOULD NOT INCLUDE NORMAL WEAR AND TEAR OF THAT
PROPERTY MAINTAINED BY THE [KTA]. THE [KTA] IS RESPONSIBLE
FOR ANY DAMAGE RESULTING FROM THE OPERATIONS OF THE
[KTA].

"[KTA] is responsible for snow removal on the principal roadway of the
Turnpike and from the service area roads (ingress and egress). It is the
responsibility of the Operator to remove all snow promptly from the areas used
by it, including the parking lot and sidewalks. The Operator must provide the
[KTA] with a copy of any contract evidencing that a third party will perform the
snow removal that the Operator is responsible for. The Operator shall commence
and complete its portion of snow or ice removal whether or not the [KTA]'s
portion is commenced or completed.

"IN THE EVENT MAINTENANCE, SNOW REMOVAL, LANDSCAPING,
GRASS CUTTING, OR ANY OTHER OPERATING FUNCTION IS NOT
DISCHARGED IN A TIMELY FASHION AFTER NOTICE TO THE
OPERATOR, THE [KTA] MAY UNDERTAKE THE SAME AND THE
OPERATOR AGREES TO REIMBURSE AT TWICE THE [KTA]'S COST.

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"It also shall be the responsibility of Operator to notify [KTA] of the occurrence
of any event or condition, the responsibility or maintenance of which rests with
the [KTA]." (Emphases added.)

D. The parties disagree about the interpretation of the contract, creating
genuine issues of material fact.

The parties disagree about the meaning of snow removal language in the leases. A
written instrument cannot be ambiguous unless two or more meanings can reasonably be
construed from the contract. The court will not strain to find an ambiguity where, in
common sense, there is none. Iron Mound v. Nueterra Healthcare Management, 298
Kan. 412, 418, 420, 313 P.3d 808 (2013). Here, we find the lease is ambiguous, because
two or more meanings can reasonably be construed from the contract language.

Ritter asserts that the Operators' lease agreements with the KTA place snow and
ice removal responsibilities over the entire parking lot on Operators, so they owed a legal
duty over that area based on their leases, including the semi-truck parking lot at the Truck
Stop where he fell. We find support for Ritter's position in the contract for five reasons:

1. The leases expressly incorporate the Map as it relates to the building, cleaning,
policing, liability, replacement, repair, maintenance, and janitorial services.
But it does not incorporate the Map in the discussion of snow removal.

2. The Map conveys on its face that it is designating the Operators' area of
responsibility for cleaning, policing, liability, replacement, repair, and
maintenance. But again, there is no mention of snow removal.

3. The leases discuss maintenance and snow removal in the same sentence, so
they must be separate concepts. This would allow the reader to conclude that
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snow removal is not simply a subset of maintenance. And this makes sense,
because if snow removal is simply a subset of maintenance, there would be no
need for a snow removal provision at all.

4. The leases specifically limit KTA's responsibility for snow removal to the
turnpike roads and the ingress and egress roads. So it expressly excludes the
parking areas. Yet the same provision holds the Operator responsible for
parking lots and sidewalks. In other areas of paragraph 10 the leases designate
"curb areas" or "adjacent sidewalks" "within areas defined in this contract to be
maintained by Operator." The snow removal provision does neither—an
indication that all parking lot snow removal is the responsibility of the
Operators.

5. Finally, KTA agreed to repair and replace all of the asphalt parking lot—inside
and outside of the physical dimensions of the leased area. So on the one hand,
KTA's maintenance responsibilities were similarly tied to the Map related to
the asphalt pavement and service roads depicted on the Map. But on the other,
the parties chose to place sole repair and replacement responsibility over the
entire parking lot on the KTA. Then when addressing snow removal, the leases
only required the KTA to remove snow from "the principal roadway of the
turnpike and from the service area roads," while the Operators had to remove
snow from "areas used by [them], including the parking lot." (Emphasis
added.) So the leases do seem to provide some varying responsibilities inside
and outside the area designated on the Map.

Ritter also asserts the leases' references to "area of responsibility" do not equate to
the property occupied, possessed, or controlled by the Operators because the leases do
not connect "area of responsibility" with the "leased area." He also notes that the leases
do not explicitly define common areas.
19
We find Ritter's argument that a reasonable interpretation of the leases would
expand the "leased area" to include the entire Truck Stop unpersuasive. The parties to
these leases clearly intended for the Operators to perform some maintenance over an
"area of responsibility" that only included the parking spaces, sidewalks, and other
exterior features immediately surrounding each business. In other words, unlike in Hall—
a case relied on by Operators—KTA did not retain exclusive control over these "common
areas" within the designated areas of responsibility. The Operators would owe a duty of
reasonable care within those areas for some of the specified maintenance tasks.

The Operators disagree that they had a duty of care to Ritter. They assert that the
leases showed the Operators only agreed to be responsible for a specific, designated area
around the buildings as depicted on the Map which was incorporated in the Heartland and
Gas Mart Leases. And because most of the paragraphs in the "Maintenance and Repairs"
section of their leases included clear references to the Map and the Operators' "designated
area of responsibility" depicted on it, the Operators argue the only reasonable
interpretation of the snow removal provision is that they were not responsible for snow
removal outside their designated area of responsibility on the Map. In support of their
arguments, the Operators assert the outcomes of Summers v. Montgomery Elevator Co.,
243 Kan. 393, 757 P.2d 1255 (1988), and Hall dictate that we should reach similar
rulings here. We disagree.

Hall fell in the parking lot of a drugstore on property leased from Quivira Square,
the landowner. A panel of this court held that the lease agreement showed that the
landowner retained control over common areas, which included the parking area where
Hall sustained her injuries. Hall, 9 Kan. App. 2d at 244. Summers sustained injuries in a
service elevator at a shopping mall and filed a personal injury lawsuit against a store
tenant at the shopping mall. The Kansas Supreme Court, relying on Hall, held that
Summers was precluded from recovery because the elevator was not located on the
20
store's leased property. As a result, the owner of the shopping mall retained all
ownership, control, and duty to maintain the elevator. Summers, 243 Kan. at 399-400.

We find neither case to be persuasive because there was no indication in Hall or
Summers that the lease required any responsibility of the lease over common areas. Here
the lessees were responsible for some common areas under the lease, whether it be
adjacent common areas and parking for general maintenance or the entire common area
for snow removal.

Although the district court ultimately concluded no Operator owed a duty of care
to Ritter because the lease agreements unambiguously showed that the KTA had
possession and control over the area where Ritter testified he fell, we are not bound by
the district court's interpretations. See Born v. Born, 304 Kan. 542, 554, 374 P.3d 624
(2016).

After construing and considering the entire instrument, at least two reasonable
interpretations emerge for the omission of an express reference to the Map and its
depicted "designated area of responsibility" in the snow and ice removal section. Under
the interpretation favored by the Operators, the express incorporations of the Map into the
preceding maintenance provisions reflect that the Map is an integral part of the lease.
According to Gas-Mart, it would be illogical to extend the Operators' snow removal
responsibilities beyond the area designated in the map because the previous references to
the Map created a clear and consistent demarcation between the Operators' and the KTA's
areas of possession, control, and maintenance responsibilities. This is a reasonable
interpretation because the parties' maintenance obligations would be clearly defined in
the lease agreements' terms and the KTA and Operators could use the Map as a guideline
for each party's "designated area of responsibility" if disputes arose.

21
Yet as Ritter points out, each of the maintenance provisions that reference the Map
is also included in the language printed on the Map itself. As a result, Ritter argues had
the parties intended for the Map also to govern snow removal responsibilities, the parties
would have placed snow removal language on the Map or otherwise referenced the Map
in the snow removal provision. Ritter also notes that the maintenance provisions state that
the Operators would be responsible for maintenance excepting only the limited areas
assumed by the KTA. Because the KTA only expressly assumed snow removal
responsibilities over the service area roads and the turnpike, while the Operators agreed
to remove snow and ice from "areas used by [them], including the parking lot," the snow
and ice removal responsibilities in the semi-truck parking area fell upon Operators.

So, one reasonable interpretation of these provisions is that snow removal falls
within the general "maintenance" that the Operators must perform strictly based on the
areas designated on the Map. Another reasonable interpretation is that the parties
intended for the Operators to be responsible for removing snow from the entire parking
lot, including the areas inside and outside of the physical dimensions of the leased area.

Because the lease provisions are capable of two interpretations, they are
ambiguous. So we turn to the purpose of the lease agreements in an effort to determine
the parties' intent. See Waste Connections, 296 Kan. at 963. Because the leases' language
is ambiguous, we may consider extrinsic or parol evidence to construe it. See Barbara
Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 452, 827 P.2d 24 (1992); Mobile
Acres, Inc. v. Kurata, 211 Kan. 833, 838-39, 508 P.2d 889 (1973). If we cannot
determine the intent of the parties from undisputed extrinsic or parol evidence, then
summary judgment is inappropriate. Waste Connections, 296 Kan. at 963-64.

The stated purpose of the agreements is clearly expressed in the opening
paragraphs. The Operators agreed to lease the restaurant facility and the retail fuel
establishment "to meet the need of the traveling public for items customarily sold at
22
[restaurants or retail fuel establishments] and for services customarily rendered thereby."
Along with that purpose, the Operators generally agreed throughout the maintenance and
repairs section to maintain the premises "in an attractive, clean, safe, and sanitary
manner."

The Operators' interpretation as stated in their motions and briefs would impair
that purpose. Given the nature of the Truck Stop as a retail fuel establishment, restaurant
facility, and rest area along the Kansas Turnpike, semi-truck drivers like Ritter would be
expected to use this Truck Stop and others like it. As a result, requiring the Operators to
remove snow and ice from "areas used by [them]" would reasonably extend to include
those areas where patrons who wish to purchase items or services from the Operators
could park their vehicles. For these reasons, consistent with Ritter's interpretation, the
parties reasonably may have intended for the Operators to be responsible for removing
snow in the semi-truck parking area.

Here, discovery had barely begun when the Operators filed their motions for
summary judgment. Ordinarily, summary judgment should be granted only when
discovery is complete. Northern Natural Gas Co. v. ONEOK Field Services Co., 296
Kan. 906, 935, 296 P.3d 1106, cert. denied 571 U.S. 826 (2013). Without additional
evidence, particularly regarding the intent of the parties, genuine issues of material fact
remain. See Noller v. General Motors Corp., 244 Kan. 612, 617, 772 P.2d 271 (1989)
(noting courts should be cautious in granting summary judgment where issues involve
questions of parties' intent); Sheldon v. Hunam Restaurant of Manhattan, Inc., No. CIV.
A. 88-2157-S, 1989 WL 151923, at *2 (D. Kan. 1989) (unpublished opinion) (finding
control over common area may require factual determination, factual issue existed
regarding intent behind lease agreement, and whether defendant had duty to plaintiff was
not fully developed).

23
Because the district court based its grant of summary judgment on a finding that
the Operators lacked any duty as a matter of law, its decision was in error. As a result, we
reverse the district court's grant of summary judgment to the Operators and remand the
case for further proceedings.

E. Even if the KTA was responsible for removing the snow from the semi-truck
parking area, the Operators also had a separate duty to notify the KTA.

Ritter maintained in his pleadings before the district court that even if the KTA
had sole responsibility to remove the snow and ice from the semi-truck parking area
where he fell, the Maintenance and Repairs section provided "[i]t also shall be the
responsibility of [Operators] to notify [KTA] of the occurrence of any event or condition,
the responsibility or maintenance of which rests with the [KTA]." The district court did
not address the importance of this provision in its ruling. Even assuming as true the
district court's finding that the KTA was solely responsible for removing the snow and
ice from the semi-truck parking lot at the Truck Stop, the Operators still owed a duty to
notify the KTA of a potentially unsafe condition because of the lack of snow or ice
removal in the semi-truck parking area. This constitutes an alternative basis for finding
the existence of a duty that was not addressed by the court.

In conclusion, the district court erred by finding the Operators owed no duty of
reasonable care to ensure the removal of snow or ice in the semi-truck parking area at the
Truck Stop. The intent of the parties to the lease agreements is unclear due the ambiguity
of the leases regarding Operators' snow and ice removal responsibilities at the Truck
Stop. Given the expressed purpose of the lease agreements to maintain the Truck Stop to
benefit the traveling public, whether the parties intended for Operators to remove snow
and ice in the semi-truck parking area remains a disputed question of material fact that
precludes summary judgment. For these reasons, we reverse the district court's decision
to grant Operators' motions for summary judgment and remand for further proceedings.
24
II. We reject Ritter’s evidentiary objections.

Next, Ritter asserts that the district court erred by relying on inadmissible and
controverted evidence when considering whether to grant summary judgment. Ritter
mainly objects to the copies of the lease agreements relied on by Heartland and Gas-Mart
in their respective motions, asserting that discrepancies between copies of each lease
agreement—particularly related to the Map—created a genuine factual dispute as to
which versions were the originals.

Appellate review of the admission of evidence requires a multistep analysis. First,
a court must determine whether the evidence is relevant. "Relevance has two
components: materiality, which is reviewed de novo; and probativity, which is reviewed
for abuse of discretion." State v. Page, 303 Kan. 548, 550-51, 363 P.3d 391 (2015). None
of the parties appear to dispute the relevance of the evidence on which the Operators rely
to support their motions for summary judgment.

But the erroneous admission of evidence is subject to harmless error review under
K.S.A. 2019 Supp. 60-261. See Water Dist. No. 1 of Johnson Co. v. Prairie Center Dev.,
304 Kan. 603, 618, 375 P.3d 304 (2016). Even if we assume—without deciding—that the
district court erred when it considered the copies of the leases, it did not affect Ritter's
substantial rights. We agree that the record keeping on the part of the Operators and the
KTA was very sloppy. But we also agree with the district court in the conclusion that
even though there may have been multiple copies of the leases and Map floating
around—some in color, some in black and white—the content that is material to this case
was all the same. Even examining a black and white copy—which is all that is in the
record on appeal—it is clear what area is highlighted. The language of the leases is the
same; some had attachments, some did not. But for purposes of the Operators' summary
judgment motions, Ritter could not show any genuine issue of material facts related to the
copies. And given that we are reversing the district court's grant of summary judgment,
25
its consideration was harmless. In fact, reviewing the documents worked in Ritter's favor.
The parties can reexamine issues of admissibility of the documents at trial.

Ritter also contends that Pettersen was not qualified to submit an affidavit in
support of Heartland's motion for summary judgment and, likewise, that Pettersen was
not a proper party to authenticate or testify about his understanding of any of the
agreements referenced in support of Operators' motions. We find this argument to be
unpersuasive. Although we do not condone Mr. Pettersen's actions here in substituting a
color copy of the Map from another file in responding to discovery requests, we find
nothing inappropriate about his affidavit. He attested he was the credit manager for the
KTA and he was responsible for contract compliance; he was custodian of the leases and
he was familiar with them. We agree with the district court that Pettersen had personal
knowledge and was competent to testify on the matters stated in his affidavit in
accordance with K.S.A. 2019 Supp. 60-256(e)(1).

III. Ritter has standing to sue Gas-Mart for negligence.

Finally, Gas-Mart contends that Ritter, as a nonparty to the lease, lacks standing to
argue the ambiguity of the lease regarding who has the duty to remove snow and ice in
the semi-truck parking area of the Truck Stop.

"Standing is a question of whether the plaintiff has alleged such a personal stake
in the outcome of a controversy as to warrant invocation of jurisdiction and to justify
exercise of the court's remedial powers on his or her behalf. . . .The party must have
personally suffered some injury and there must be a causal connection between the injury
and the challenged conduct." Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d
172 (1996).

To support its claim, Gas-Mart cites one case, Storts v. Hardee's Food Systems,
Inc., 919 F. Supp. 1513 (D. Kan. 1996). Unfortunately for Gas-Mart, Storts does not
26
apply here. Storts was abducted from a Hardee's at a KTA Truck Stop. She claimed that
her abduction and resulting injuries resulted from Hardee's negligence. When she was
advised that her negligence claim was untimely, she abandoned it to pursue a timely
breach of contract claim. She claimed she was a third-party intended beneficiary of the
contract between KTA and Hardee's and sued to enforce the contract, even if she was not
a party to it. The federal district court found that Storts was not a third-party beneficiary
of the KTA and Hardee's contract so she could not pursue a breach of contract claim. 919
F. Supp. at 1513, 1519-20.

The inapplicability of Storts to Ritter's case is clear. Ritter is not making a breach
of contract claim. He is not claiming he is an intended beneficiary of the contract. At
most he is an incidental beneficiary of the contract, but he does not even make that claim.
All Storts tells us is that Ritter lacks standing to sue to enforce the contract between Gas-
Mart and KTA. But Ritter is not seeking to enforce the contract. He is not claiming that
Gas-Mart breached the contract. Ritter is pursuing a negligence claim and arguing that
Gas-Mart had a duty—based on the contract it has with KTA—to remove snow and ice
from the area where Ritter fell.

We are unaware of any cases that prevent an examination of a contract and its
meaning to establish negligence, and Gas-Mart cites none. So its claim fails. Ritter has
standing to pursue his negligence claim.

Summary judgment orders reversed and case remanded for further proceedings.