Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2710-24 MATTHEW KUZMA, a minor by his g/a/l ANGELA ADORNETTO, Plaintiff-Appellant, v. MIDDLESEX COUNTY PARKS DEPARTMENT, Defendant-Respondent, and BOROUGH OF SOUTH PLAINFIELD, Defendant. ___________________________ Argued October 13, 2026 – Decided October 28, 2026 Before Judges Sabatino and Perez Friscia. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5478-22. Patrick J. Flinn argued the cause for appellant (Levinson Axelrod, attorneys; Patrick J. Flinn, on the briefs). John W. Harding argued the cause for respondent (Martin Kane & Kuper, LLC, attorneys; John W. Harding, on the brief). PER CURIAM This negligence case concerns a boy who injured his ankle permanently when he tripped over a large crack while playing on a basketball court located within a county park. The trial court granted summary judgment to the defendant Middlesex County Parks Department 1 based on immunity under the Landowners Liability Act ("LLA"), N.J.S.A. 2A:42A-2 to -10. Applying to this record the Supreme Court's recent opinion in Arias v. Cnty. of Bergen, 262 N.J. 479 (2026) construing the LLA, and other guiding legal principles, we affirm. I. We summarize the relevant facts from the summary judgment record, viewing them in a light most favorable to plaintiff. Brill v. Guardian Life Ins. 1 For ease of discussion, we will refer to this named defendant and other relevant units of county government as "the County." A-2710-24 2 Co. of Am., 142 N.J. 520, 523 (1995); see also Globe Motor Co. v. Igdalev, 225 N.J. 469, 485 (2016). Spring Lake Park The accident at issue occurred in Spring Lake Park ("the Park"), a 127- acre park located in the Borough of South Plainfield 2 in a developed suburban area. The Park is owned and operated by the County. The Park contains several amenities, including tennis courts, walking and bike paths, a gazebo, and, most pertinent to this appeal, three asphalt-surfaced basketball courts. In 2019, the Park had two employees who worked onsite on a daily basis. Their jobs entailed making sure the park grounds were cleaned and maintained and providing assistance to patrons. The County's Plans to Resurface the Park's Basketball Courts In or about 2017, Rick Lear, the County's Director of Parks and Recreation, requested that the basketball courts and pathways of the Park, along with another park in the County, be resurfaced because they were "weathered, used, [and] unsightly." As part of this process, the County at some point before 2 The Borough was named a co-defendant in plaintiff's complaint. At the trial level, plaintiff voluntarily dismissed the Borough from the case, but without prejudice. While the appeal was pending, plaintiff elected to convert the dismissal of the Borough to one with prejudice. Hence, the appeal is from a final disposition of all issues as to all parties. R. 2:2-3. A-2710-24 3 2019 hired an engineering firm to generate a report about the condition of the artificial surfaces in the Park. Although the engineering firm concluded, after a site inspection, that the basketball courts needed to be resurfaced, it did not advise the County that they were unsafe. Plaintiff's Fall in August 2019 On August 23, 2019, before the resurfacing was conducted, then fourteen- year-old plaintiff Matthew Kuzma rode his bike to the Park with his friends and proceeded to play basketball on the courts. Although he noticed the court had a large crack running through it, plaintiff did not perceive that it would be dangerous to play basketball there. He also observed that all three courts were in a similar condition. The crack is depicted below, in two photographs from the record: A-2710-24 4 3 3 This photo of the basketball court is taken from an engineer's expert report proffered by plaintiff. A-2710-24 5 4 Despite the court's condition, plaintiff and one of his friends chose to play 4 This photo is also derived from the engineer's report. A-2710-24 6 basketball there. While plaintiff was trying to stop the basketball from going out of bounds, his foot accidentally fell into the crack. As he turned his body he felt a "pop" in his ankle, collapsed, and could not move his ankle without a "super sharp pain." Plaintiff called his mother to pick him up and she drove him to an urgent care center. Later, plaintiff visited his school's sports doctor, who put him in a boot and recommended that he obtain an MRI. That initial MRI revealed "significant bruising and a contusion," along with a "very large hematoma surrounding the ankle" and "a tear laterally of the anterior talofibular ligament." The MRI revealed other muscle and ligament tears in the ankle, an ankle fracture, and a fracture of one of plaintiff's still-open growth plates. After plaintiff's ankle pain persisted for several months and additional medical tests were performed, plaintiff was examined by a board-certified orthopedic surgeon. The surgeon opined that the fall had caused plaintiff permanent injuries, with scar tissue leaving "permanent loss of motion, loss of elasticity and chronic pain."5 At his deposition, plaintiff stated that he could not walk, run, jump or 5 For purposes of this appeal, which is confined to liability and immunity issues, the County has not contested the extent nor the causes of plaintiff's injuries. A-2710-24 7 perform any lower body exercises without discomfort. He also asserted that, due to the injury, he never achieved his fullest potential as a basketball player, and he could not play in college. Complaint and the County's Affirmative Defenses After serving the requisite tort claims notices, plaintiff, through his mother Angela Adornetto, filed a complaint in the Law Division against the Parks Department, the Borough of South Plainfield, and various fictitious parties. The complaint alleged defendants had caused his injury by negligently maintaining the basketball court. In its answer, the County raised twenty-seven affirmative defenses to the complaint. Notably, the answer did not plead immunity under the LLA as an affirmative defense. In May 2023, plaintiff amended his complaint to reflect that he had reached the age of majority. The County again filed an answer with the same affirmative defenses, omitting reliance on the LLA immunity. Discovery and Pertinent Deposition Testimony Discovery in the case was lengthy and was extended three times by the trial court. With respect to liability, numerous depositions were taken of various County and Park employees, including Lear, John A. Pulomena (the County Administrator), Kenneth Shook (the assistant foreman of the Park), and Larry A-2710-24 8 Mayerowitz (a County Parks supervisor). A resident of the County who frequented the Park was also deposed. Pulomena testified about the repaving of the basketball courts in the Park. He explained the project was planned due to the age of the facilities. He denied that the County was aware of any defects on the basketball courts. Pulomena acknowledged that the basketball court had not been fenced off until after plaintiff fell and filed his notice of claim.6 During his own deposition, Lear recounted there were two full-time employees at the Park: Shook and another laborer. They were to inform their supervisor if they observed any safety issues there. Lear was unaware whether their supervisor required them to make regular inspections of the basketball courts. Lear was the County official who made the request for the Park facilities to be resurfaced. He explained the process for the County's Office of Engineering to assign a design engineer to develop a scope of work for the resurfacing project, confirm or obtain budgetary authorization if needed, and the 6 We mention this fact as part of the background, without considering whether evidence of these post-accident steps would be inadmissible at trial under the subsequent remedial measure rule, N.J.R.E. 407, or admissible under its exceptions. A-2710-24 9 public bidding entailed in hiring a contractor to do the work. Lane recalled that he made the request for resurfacing in or about 2017. At his own deposition, Shook stated that it was evident the basketball courts were "old and weathered," but his understanding was that they were soon going to be repaved. Shook testified that although he had noticed the cracks and depressions in the courts, he did not bring them to Lear's attention because he thought Lear "probably knew about them," and the County had already begun the process of resurfacing. In his own deposition, Mayerowitz testified that he did not believe the condition of the basketball courts rendered them unsafe for play. He acknowledged that, aside from removing trash from the courts, no County employees had performed additional maintenance to improve the area's conditions. The deposed local resident stated that before plaintiff's fall, he frequently used the basketball courts at the Park and noticed that they had many large cracks and "pits." The resident recalled that several months before plaintiff's fall, he spoke to an unidentified Park employee and expressed his concerns that the cracks and pits in the courts made them unsafe for play. The resident could not precisely recall the employee's response, but testified the employee may A-2710-24 10 have said the issue would be looked into. The resident did not document his concerns in a letter. Plaintiff's Engineering Expert Plaintiff obtained a liability expert report from a registered professional engineer. The engineer personally inspected the basketball courts, post- accident. He measured the cracks, finding the one where plaintiff fell was roughly six inches wide and over an inch deep. The expert also reviewed photos of the courts taken by a consulting firm hired by the County to conduct the resurfacing project, as well as aerial photographs. The expert concluded that the County "knew or should have known of the defective court condition many months prior to [plaintiff's] fall." He opined that the condition of the courts "met no reasonable standard for safety" because the width and depth of the cracks were greater than the one-fourth-inch depth and one-half-inch width permitted by the New Jersey Uniform Construction Code. He asserted the effects of the cracking could have been mitigated by "surface crack sealing" or other professionally recognized forms of asphalt maintenance, or closing the courts until the resurfacing was completed. Our June 2024 Opinion in Arias and the County's Ensuing Amendment of Interrogatory Responses While this case was still in the discovery phase, on June 14, 2024 we A-2710-24 11 issued our published opinion in Arias v. Cnty. of Bergen, 479 N.J. Super. 268, 290 (App. Div. 2024), and ruled that a county park, which the County argues is similar to the one in question here, was subject to the immunity of the LLA. 7 Four months later, in October 2024, the County amended its answers to the Form C and C2 interrogatories. One of these amendments cited the LLA, in response to an interrogatory asking what statutes the County intended to rely upon at trial. In a letter served on plaintiff's counsel, the County listed all the answers it had amended, including the one that cited the LLA. Plaintiff did not move to extend discovery, which ended three months later on January 15, 2025. Summary Judgment Motion Practice In February 2025, the County moved for summary judgment and argued it is immune under the LLA from liability for its actions and inactions regarding the basketball court. In his response to the County's statement of material facts, plaintiff argued the County should not be able to rely on the LLA because it failed to assert immunity as an affirmative defense in both its first answer to his complaint and its later answer to his amended complaint. 7 We discuss the facts in Arias, and the Supreme Court's application of LLA immunity in that case, infra, in Part II(A). A-2710-24 12 The County argued in response that plaintiff had been fairly notified that it intended to rely on the LLA, based on its post-Arias amendments to interrogatories. On March 3, 2025, while the summary judgment motion was pending but before oral argument, plaintiff's expert served a "supplemental engineering analysis" that assessed the County's liability in the event that the court found the LLA applied. The expert opined that even if the immunity applied, the County had engaged in "willful or malicious failure to guard" the hazardous basketball courts. The expert noted in this regard the depositions of Lear, Mayerowitz, and Shook showing that the condition of the courts was known to County officials, but they took no action to guard, repair, or inspect the courts before the accident. Motion Argument and Decision At the ensuing oral argument on the summary judgment motion, the County argued the Park is virtually identical to the park at issue in Arias. The County further argued its defense of LLA immunity was not raised too late, because the County promptly amended its interrogatories shortly after our opinion in Arias was published. In addition, the County asserted that plaintiff could not overcome LLA immunity by proving it had acted "willfully" or A-2710-24 13 "maliciously." See N.J.S.A. 2A:42A-4.8 The County emphasized that the outside consulting firm it had hired to conduct the resurfacing had not notified it that the basketball courts were unsafe for play. Plaintiff raised both procedural and substantive arguments in opposing summary judgment. Procedurally, he stressed that the County had not pled immunity as an affirmative defense with its two sets of answers. Substantively, plaintiff argued that the basketball courts were a discrete, defined area of the Park that would have been easy to observe or maintain. As to whether the County had forfeited LLA immunity by being "willful or malicious," plaintiff emphasized that as the non-movant, he was entitled to inferences drawn in his favor. He asserted that the cracks in the basketball court were so severe that a patron had reported it to a park employee and nothing was done. He argued it is reasonable to infer the County had known about the condition of the courts for years and elected not to patch any of the cracks , or place fencing around the courts. In response to plaintiff's argument, the County emphasized that the basketball courts are only one area within a large Park of over one hundred acres, which only two employees inspected and maintained. 8 We explore that exception to immunity in Part II(B)(3), infra. A-2710-24 14 The Trial Court's Grant of Summary Judgment On April 10, 2025, the trial court granted the County's motion in an oral opinion and dismissed the case. First addressing the late inclusion of LLA immunity as a defense, the court recognized that immunity generally is an affirmative defense and should have been raised as an answer, and that the County's amendment of its interrogatory responses was not equivalent to an amendment of its answers to the complaint. Nonetheless, the court permitted the County to rely on LLA immunity, in the interest of "public policy considerations and the ability to have cases decided on their merits." Additionally, although the court deemed the post-discovery supplemental report from plaintiff's engineering expert late, the court opted to consider it, in fairness, as a response to the County's late assertion of immunity. On the merits, the trial court determined that the Park was similar to the park at question in Arias, as it provided "general public access to various areas including open space where sport and recreational activities may be conducted." The court did not find it dispositive that the basketball courts were located in a more developed area within a larger Park covered by the Act's immunity. The court rejected plaintiff's argument that the County had willfully or A-2710-24 15 maliciously failed to guard the courts. The court noted the engineer's opinion about compliance with a legal standard would not be "competent evidence" that could be admitted at trial. Moreover, even considering that several County employees had seen the cracks before the accident, the court concluded "[t]here is nothing in the record to suggest that any conduct was malicious or intentional other than maybe the mere opinion of [the expert] saying or using that word." The court ruled the County had not acted willfully because "the record does not indicate that defendants created a hazard deliberately or acted with . . . such conduct." Although the court acknowledged there was evidence the County knew about the cracks, "whether or not something is willful is a high burden," and one that plaintiff failed to meet even with all inferences drawn in his favor. Consequently, the court issued a written order on April 10, 2025, granting summary judgment to the County. This appeal followed. II. On appeal, plaintiff raises the following points in his brief: (1) the County's motion for summary judgment should have been denied on procedural grounds due to its failure to plead LLA immunity as an affirmative defense in its answers to the complaints; (2) summary judgment should be reversed because the County failed to establish that LLA immunity applies to a basketball court A-2710-24 16 located in a suburban neighborhood; and (3) even if LLA immunity extended to such a basketball court, the inferences of fact here, viewed in plaintiff's favor, would allow a jury to find the County engaged in a "willful" failure to guard against the dangerous condition. Having duly considered these arguments in light of the record and the applicable law, we affirm summary judgment in the County's favor. We do so because the Supreme Court's recent opinion in Arias supports the application of the LLA to these particular facts, and because the record—even viewed in a light most favorable to plaintiff—does not rise to a level to be deemed "willful" conduct. In addition, we concur with the trial court's fair and reasonable rejection of plaintiff's procedural argument to bar the County's post-Arias assertion of LLA immunity. A. To frame our analysis of the issues, we present the following background concerning the LLA and its interpretation in Arias. The LLA The LLA was first enacted in 1968, replacing an earlier 1962 law that "exempted any 'landowner of agricultural lands or woodlands' from liability for injuries to anyone 'hunting or fishing upon the landowner's property.'" Arias, A-2710-24 17 262 N.J at 486. The 1968 version of the LLA expanded this immunity to "an owner, lessee or occupant of premises who gives permission to another to enter upon such premises for a sport or recreational activity." N.J.S.A. 2A:42A-3(b). Although the term "premises" is not defined within the LLA, the phrase "sport or recreational activities" is defined as hunting; fishing; trapping; horseback riding; training of dogs; hiking; camping; picnicking; swimming; skating; skiing; sledding or tobogganing; operating or riding snowmobiles, all-terrain vehicles or dirt bikes; and any other outdoor sport, game and recreational activity including practice and instruction in any of these activities. [N.J.S.A. 2A:42A-2 (emphasis added).] Acknowledging the statute's "uncertainty" when it came to what types of land were protected, the Supreme Court in 1979 established a four-factor test for LLA immunity that weighed "the use for which the land is zoned, the nature of the community in which it is located, its relative isolation from densely populated neighborhoods, as well as general accessibility to the public at large." Harrison v. Middlesex Water Co., 80 N.J. 391, 401 (1979). Additionally, the Court observed in Harrison it was unlikely the Legislature intended to immunize owners of "improved lands freely used by the general public located in populated neighborhoods in urban or suburban areas," rather than the owners of "lands A-2710-24 18 located in rural or woodland reaches where the activities of people thereon cannot be supervised or controlled." Id. at 401-02. Several years later in 1991, the Legislature amended the LLA, most notably declaring that the Act "shall be liberally construed to serve as an inducement to the owners, lessees, and occupants of property, that might otherwise be reluctant to do so for fear of liability, to permit persons to come onto their property for sport and recreational activities." N.J.S.A. 2A:42A-5.1 (emphasis added). Additionally, the 1991 amendments declared that a landowner may be covered by the Act's immunity, regardless of whether the property in question is "improved or maintained in a natural condition." N.J.S.A. 2A:42A-3(a). Ensuing case law applying the LLA focused on the "dominant character" of the land in question, holding the statute's immunity should not be extended to "suburban or urban landowners." Toogood v. St. Andrews at Valley Brook Condo. Ass'n, 313 N.J. Super. 418, 425-26 (App. Div. 1998). Arias As noted above, on June 14, 2024, we issued a published opinion in Arias v. Cnty. of Bergen, 479 N.J. Super. 268 (App. Div. 2024). Arias factually A-2710-24 19 concerned a pedestrian who fell while rollerblading on a paved pathway in Van Saun Park, a 130-acre park located in a suburban neighborhood. Id. at 272. We ruled in Arias that Van Saun Park was subject to the Act's immunity. Id. at 289. We concluded that the appropriate standard was the "dominant character of the land" test expressed in Toogood, rather than the factor-based test in Harrison that focused on what surrounded the land. Id. at 285. We reasoned the "dominant character of the land" analysis would better serve the LLA's purpose of incentivizing landowners to open their lands up to the public for sport and recreation, regardless of whether more urban and suburban developments surrounded that land. Id. at 288. Arias appealed to the Supreme Court. The Court granted certification and decided the case earlier this year, in January 2026. Arias, 262 N.J. at 481. The Court affirmed our conclusion of immunity after a detailed recitation of the LLA's history and interpretation. Id. at 484-90. The Court's opinion described Van Saun Park and its many amenities, including discrete improved areas such as tennis courts, in addition to the paved pedestrian paths. Ibid. Despite the park's location in "a densely populated suburban, rather than rural, area," the Court ruled that the "expansive" and "accessible" property it provided to the public for sport and recreation meant A-2710-24 20 that it was the "very type of open property . . . the Legislature seeks to maintain and protect through the LLA." Id. at 491. Particularly, the Court observed in Arias that wide-open rural spaces have greatly diminished in New Jersey since the Act's initial passage decades ago. Id. at 493. The Court rejected the plaintiff's argument that Van Saun Park was not a premises covered by the LLA, as such a finding would discourage counties and municipalities from maintaining similar wide-open spaces in otherwise densely populated areas. Id. at 493-94. Notably, the Court in Arias did not narrowly regard the paved pedestrian pathways on which the rollerblading plaintiff had been injured as the relevant "premises" under the LLA. Id. at 490-94. Instead, the Court considered the character of the park in its entirety. Ibid. Based on that legal analysis, the Court agreed with our conclusion in Arias that the trial court's dismissal of the complaint was appropriate. Id. at 483, 493. The LLA's Exception for "Willful or Malicious Failure" Although not discussed in Arias, the LLA does not immunize landowners from liability that would otherwise exist a. For willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity; or A-2710-24 21 b. For injury suffered in any case where permission to engage in sport or recreational activity on the premises was granted for a consideration other than the consideration, if any, paid to said landowner by the State; or c. For injury caused, by acts of persons to whom permission to engage in sport or recreational activity was granted, to other persons as to whom the person granting permission, or the owner, lessee or occupant of the premises, owes a duty to keep the premises safe or to warn of danger. [N.J.S.A. 2A:42A-4 (emphasis added).] The term "willful" is not defined within the statute.9 While the present case was pending, in a published opinion we construed the term to mean "done deliberately or knowingly and often in conscious violation or disregard of the law, duty, or rights of others." Callahan v. Tri-Borough Sand and Stone, 478 N.J. Super. 505, 514 (App. Div. 2024) (emphasis added). We noted in Callahan that that the associated term "wanton," which is commonly defined as "manifesting extreme indifference to a risk of injury to another that is known or should have been known," was not included along with "willful" in the LLA. Ibid. (emphasis added). However, we recognized that the 9 During oral argument on this appeal, plaintiff's attorney acknowledged that plaintiff does not contend the County's failure to resurface or fence off the basketball court before the accident was "malicious." Our focus therefore is on whether the County's actions and inactions were "willful." A-2710-24 22 terms "often are considered together and connote an unlawful intent." Id. at 514. "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. (quoting G.S. v. Dep't of Human Servs, Div. of Youth & Fam. Servs., 157 N.J. 161, 178 (1999)). Callahan factually concerned a negligence claim by a child who was injured while riding his dirt bike in a quarry after he struck a cable that had been placed by the landowners to dredge the quarry. Id. at 507. The child's mother claimed that the owners knew that "hundreds" of people regularly rode dirt bikes and ATVs on the property. Id. at 509. Because the cable in Callahan had been erected for business purposes (i.e., dredging the quarry), we ruled as a matter of law that the landowners did not engage in "the knowing creation of a hazard to a dirt bike rider," regardless of whether the owners may have knowingly created a general hazard. 478 N.J. Super. at 514. B. We turn now to the specific issues under the LLA raised here, namely (1) the procedural timeliness of the County's invocation of the immunity; (2) whether the LLA covers the basketball courts within the Park; and (3) whether there are sufficient indicia of "willful" conduct by the County that could overcome the immunity. A-2710-24 23 1. As a general principle of pleading, Rule 4:5-4 prescribes that: A responsive pleading shall set forth specifically and separately a statement of facts constituting an avoidance or affirmative defense including but not limited to accord and satisfaction, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, frustration of purpose, illegality, impossibility of performance, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. [R. 4:5-4.] "While the rule does not expressly so state, it is clear that ordinarily an affirmative defense that is not pleaded or otherwise timely raised is deemed to have been waived." Pressler & Verniero, N.J. Court Rules Annotated, cmt. 1 on R. 4:5-4. Other affirmative defenses not explicitly listed in the Rule are still subject to its requirements. Brown v. Brown, 208 N.J. Super. 372, 384 (App. Div. 1986) (holding that a defendant waived the affirmative defense of preclusion by not raising it in his answer). Even if an affirmative defense is mentioned in the initial answer to a complaint, it may still be considered waived by a party's conduct during the litigation. White v. Karlsson, 354 N.J. Super. 284, 289 (App. Div. 2002). A-2710-24 24 However, a late-asserted affirmative defense may not be deemed waived if waiver would not be "consistent with principles of substantial justice." J.B. Pool Mgmt., LLC v. Four Seasons at Smithville Homeowners Ass'n, Inc., 431 N.J. Super. 233, 251 (App. Div. 2013). For example, in J.B. Pool, we concluded that the defendant had not waived the affirmative defense of frustration of purpose, given the "unsettled state of the law" at the time as to whether that defense had to be raised in the initial response to a pleading. Ibid. In a similar vein, we held in Ahammed v. Logandro, 394 N.J. Super. 179, 186 (App. Div. 2007), that a defendant who neglected to raise an affirmative defense of immunity under the worker's compensation statute until after the conclusion of discovery and an arbitration proceeding had not waived that defense because the defendant was under the misimpression that the plaintiff was an independent contractor. We observed that waiver of an affirmative defense "depends on principles of equity and public policy." Id. at 191. It was not clear in Ahammed that the workers compensation bar applied until discovery was completed. Ibid. The Supreme Court has likewise recognized that "under some circumstances . . . where public policy calls for it, and there is no unfair surprise, substantial prejudice or undue interference with the efficient administration of A-2710-24 25 justice, a defense will be considered properly before the court although not pleaded." Rivera v. Gerner, 89 N.J. 526, 536 (1982). As we noted above, in the present case the trial court permitted the County to invoke the affirmative defense of LLA immunity by amending its interrogatory responses shortly after we issued our July 2024 opinion in Arias. We review that decision under an abuse-of-discretion standard of appellate review. Reynolds Offset Co. v. Summer, 68 N.J. Super. 46, 54 (App. Div. 1961) (applying an abuse-of-discretion standard in such a context). The trial court did not abuse its discretion here in allowing the late invocation of the LLA immunity. Our July 2024 published opinion in Arias significantly illuminated the interpretation of the statute and the importance of evaluating the "dominant character" of the premises as a whole. Arias, 479 N.J. Super. at 284-85. A prudent attorney might not have reasonably anticipated that precedential holding. Indeed, defense counsel candidly acknowledged to us at oral argument that he had not initially asserted the LLA as an affirmative defense because the defense did not seem applicable here under pre-Arias case law. We are also mindful that when the County amended its interrogatory responses in October 2024, there were about three months left before the discovery end date expired in January 2025. Plaintiff has not identified any A-2710-24 26 additional questions it would have asked at the depositions of the fact witnesses had the LLA been invoked sooner. Plaintiff already had an incentive to discover and elicit facts that might support his claims of negligence and alleged failures by the County to take remedial action to address a dangerous condition. Moreover, the trial court equitably allowed plaintiff to tender a post-discovery supplemental report from his engineering expert addressing pertinent factors under the LLA. In sum, we conclude the County did not waive LLA immunity, and reject plaintiff's procedural argument. 2. We next consider the applicability of the LLA to the condition of the basketball courts. We agree with the County's argument and the trial court's assessment that the Park in this case is physically comparable to the park in Arias. The acreage is about the same size, as is the composition of the parks— with both open areas and recreational structures such as tennis courts and paved pathways (as in Arias), and the basketball courts in this case. It is indisputable that the basketball courts were provided by the County and used by plaintiff as a place for an "outdoor sport, game and recreational activity." N.J.S.A. 2A:42A- 2. A-2710-24 27 We further concur with the trial court that the "dominant" character of the Park is that of a place of outdoor recreation, which falls within the liberally- construed scope of the LLA. Plaintiff argues that the immunity analysis should zero in on the "defined" area consisting of the basketball courts and that we should not extend the immunity to that particular portion of the Park. But such a narrow focus does not align with the mandate from Arias to evaluate the premises as a whole. Plaintiff contends the pathways in Arias that pervasively wind through that park are distinguishable from the discrete location of the three basketball courts within Spring Lake Park. He submits that maintenance of the courts would entail less of a burden on the property owner than maintaining long stretches of pathways. Although they are not identical features, the pathways in Arias and the courts in this case are nonetheless both recreational components within a park that is clearly within the scope of the LLA. The adoption of what is essentially a piecemeal approach to LLA immunity advocated by plaintiff could have detrimental policy implications that run counter to the Court's policy concerns in Arias. Public entities would have to surmise which areas of their parks are "defined" enough to be outside of LLA immunity, and then would need to allocate more resources to maintain those A-2710-24 28 areas and perhaps afford less attention to other portions of the premises. Conceivably, public entities might elect to close off or not build "defined" facilities within parks such as basketball and tennis courts, thereby depriving the public of such beneficial recreational amenities. That said, we confine our holding to the specific facts of this case. We need not address here whether every playground, equipment, or other amenity within a park is within the ambit of the LLA. We simply hold that, on the facts presented in this record, the trial court did not err in its application of the LLA. 3. Lastly, we consider whether the trial court erred in granting summary judgment and not al