Fantasia General Trading

[Gigí Ruais]

Debtsaddled China Evergrande is set to raise more than $5 billion by selling a majority stake in its property management arm, Chinese media said Monday, a deal which would be the struggling giant's largest asset sale yet if it goes ahead.

Evergrande on Monday said it requested a halt in the trading of its shares in Hong Kong pending an announcement about a major transaction. Evergrande Property Services Group , a spin-off listed last year, also requested a halt and said it referred to "a possible general offer for shares of the company."

Plaintiff Rosa Maria Borbon appeals from the order of the Law Division dismissing her personal injury cause of action against defendants Paul Bogosian and Bogosian P&A trading as P&A Advertising Agency (collectively Bogosian). Responding to Bogosian's summary judgment motion, the court held that plaintiff's claims are barred by a specific provision in the lease agreement entered into between Bogosian, as landlord, and Fantasia Industries (Fantasia), as tenant, which make the tenant responsible for maintaining the property upon which plaintiff allegedly fell and injured herself. Fantasia is also plaintiff's employer. We affirm.

Fantasia operates its business from 20 Park Place in Paramus. Plaintiff alleges that on March 3, 2006, she was injured during the course of her employment with Fantasia when she slipped and fell on ice that had formed on the ground immediately outside the entrance of her worksite. The icy conditions were caused by a broken drain pipe that leaked water onto the ground. This drain had been leaking water in this fashion throughout plaintiff's eight-year tenure at Fantasia.

Fantasia is the only tenant occupying the property located at 20 Park Place. Plaintiff does not dispute that her supervisor at Fantasia salted the area surrounding the property during the entire time she worked there. In fact, under the terms of the lease agreement between Fantasia and Bogosian, the tenant has sole responsibility for maintenance and repair of the property, including keeping the entrances and stairs free from snow and ice.

The lease agreement requires the tenant to secure and maintain liability insurance for the benefit of the landlord, with a coverage limit of not less than one million dollars. The tenant also agreed to hold the landlord harmless and indemnify it for any liabilities and costs "for any cause or reason whatsoever arising out of or by reason of the occupancy of [the property] by the Tenant or business of the Tenant."

The lease further specifically protects the landlord from liability for any damage or injury asserted by a third party "as a consequence of the failure, breakage, leakage or obstruction of the water, . . . drains, leaders, gutters . . . downspouts or the like . . . or by reason of the elements[.]" The landlord is only responsible for damage or injury resulting from "the gross negligence or willful misconduct of the Landlord or [its] agents, employees, guests, licensees, invitees, assignees or successors." Finally, although the landlord reserved a right to enter the property to perform repairs, the lease does not obligate the landlord to make any inspection or repairs.

Archie Bogosian and Paul Bogosian signed the lease on behalf of both the landlord and the tenant. The Bogosians are principals of the entity that holds title to the property and are owners of Fantasia, the tenant. Both landlord and tenant list 20 Park Place as their business address.

Against these facts, the trial court granted Bogosian's motion for summary judgment. The court concluded that the workers' compensation bar, which precluded plaintiff from recovering from her employer, applied with equal force to the landlord under these circumstances because plaintiff's employer was the only commercial tenant of the property upon which she was injured. The court also rejected plaintiff's unsubstantiated allegations that there were other commercial tenants occupying the property at the time of her accident. Finally, the court rejected plaintiff's fall-back argument that the workers' compensation bar was inapplicable because defendants', both landlord and tenant, failure to correct this longstanding dangerous condition on the worksite amounted to willful or wanton conduct.

We start our analysis by noting that plaintiff is not challenging the propriety of the trial court's dismissal of her claims against Fantasia in this appeal. The only issue before us is the court's dismissal of plaintiff's claims against Bogosian in its capacity as the landlord of 20 Park Place.

A trial court must grant summary judgment to the moving party if "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Summary judgment is properly granted if the party opposing such motion "fail[s] to allege or prove [its] prima facie case." Brill, supra, 142 N.J. at 536-37. The party opposing summary judgment must show that a genuine issue of fact exists. Id. at 529. "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

Mindful of this standard, we are satisfied that the trial court correctly granted Bogosian's motion for summary judgment. It is now well-established that "'there is no landlord liability' for personal injuries suffered by a commercial tenant's employee on the leased premises 'due to a lack of proper maintenance or repair, when the lease unquestionably places responsibility for such maintenance or repair solely upon the tenant.'" Geringer v. Hartz Mountain Dev. Corp., 388 N.J. Super. 392, 401 (App. Div. 2006) (quoting McBride v. Port Auth. of N.Y. and N.J., 295 N.J. Super. 521, 522 (App. Div. 1996)), certif. denied, 190 N.J. 254 (2007). Unless the landlord specifically agrees to make repairs, the burden to do so falls upon the tenant. Coleman v. Steinberg, 54 N.J. 58, 63 (1969).

There are three common law exceptions to this general rule: (1) the landlord is responsible to maintain sections of the property that are not part of the lease agreement and remain under the landlord's control; (2) the landlord specifically agrees to use reasonable care to protect the tenant from injury arising from defects in the property; and (3) the landlord cannot knowingly or deceptively conceal a dangerous condition that the landlord is under a duty to disclose to the tenant. McBride, supra, 295 N.J. Super. at 525. None of these exemptions are applicable here.

Wan Hongwei, age 48, was appointed as an executive Director and the deputy chairman of the Board on 12 August 2021. He has also served as a director and vice chairman of the board of directors of Shuanghui Development since 22 August 2018. He also holds directorships in various subsidiaries of the Group. He served as an assistant to the chief executive officer of the Company from 1 January 2014 to 11 August 2021 in change of public relation of the Company. Mr. Wan Hongwei was secretary to the chairman of Shuanghui Group from 2004 to 2013.

Charles Shane SMITH, age 48, was appointed as an executive Director on 11 August 2021. He has also served as a director, the president and chief executive officer of Smithfield Foods (an indirect wholly-owned subsidiary of the Company) since 8 July 2021. He has served in various other positions with Smithfield since joining Smithfield in 2003, including chief strategy officer from January 2021 to 7 July 2021, executive vice president of Smithfield European operations from April 2019 to January 2021, president of Smithfield Romania operations from November 2017 to April 2019 and chief financial officer of Smithfield Europe operations from September 2012 to April 2019. Mr. Smith has expertise in overseeing the day-to-day operations of the entire vertically integrated business of Smithfield. Mr. Smith obtained his Master of Business Administration degree from the College of William and Mary in Virginia in 2009 and Bachelor of Science in accounting from Mount Olive College in 2000. Mr. Smith became a certified public accountant under the laws of North Carolina of the United States of America in 2001. In October 2017, Mr. Smith agreed to forfeit his certificate as a certified public accountant solely due to his inability to locate a written confirmation of attendance at two hours (of the annual requirement of a total of 40 hours) of continuing education. While Mr. Smith has the right to apply for reissuance of his certificate, subject to fulfillment of certain requirements of the North Carolina accounting board, he has elected not to do so because he no longer holds himself out to the public as a certified public accountant.

JIAO Shuge (焦樹閣), age 56, was appointed as our Director on 28 April 2006. He was designated as a nonexecutive Director on 31 December 2013. He also holds directorships in various subsidiaries of the Group. He served as the deputy chairman of our Board from 26 November 2010 to 14 August 2018. Mr. Jiao served as a director of Shuanghui Development (a company listed on the Shenzhen Stock Exchange with stock code 000895 and our subsidiary) from 20 August 2012 to 31 August 2021. Mr. Jiao is also currently a director and managing partner of CDH China Management Company Limited.

LAU, Jin Tin Don (劉展天), age 65, was appointed as one of our independent non-executive Directors on 16 July 2014 with effect from the Listing Date. Mr. Lau served as an executive director and one of the responsible officers of Spring Asset Management Limited, a company incorporated in Hong Kong for the sole purpose of managing Spring Real Estate Investment Trust (a Hong Kong collective investment scheme listed on the Stock Exchange with stock code 01426) from April 2013 to May 2017. Prior to joining Spring Asset Management Limited in 2013, he was the deputy group financial controller of Yuexiu Property Company Limited (a company listed on the Stock Exchange with stock code 00123). From 2005 to 2010, he was also the deputy chief executive officer, compliance manager and one of the responsible officers of Yuexiu REIT Asset Management Limited which is responsible for managing the assets of Yuexiu Real Estate Investment Trust (a Hong Kong collective investment scheme listed on the Stock Exchange with stock code of 00405).

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