Plaintiff Matthew Kuzma was injured when he tripped over a large crack while playing on a basketball court located within a county park owned by Middlesex County. While the 14-year-old minor observed the cracks in the court, he proceeded to play basketball on the court with his friends. Trying to keep the ball from going out of bounds, his foot caught in one of the cracks causing him to suffer a substantial ankle injury. The issue in Kuzma v. Middlesex County Parks Dept., 2026 N.J. Super. Unpub. LEXIS 2400 (App. Div. Oct. 28, 2026) was whether the County was immune from liability based upon the Landowners Liability Act.
The accident occurred in Spring Lake Park, located in the Borough of South Plainfield. The park was owned and operated by Middlesex County. It included tennis courts, walking and bike paths, a gazebo, and 3 asphalt surfaced basketball courts.
About 2 years before Plaintiff’s accident, the County’s Director of Parks had requested that the basketball courts be resurfaced because they were “weathered.” The County hired an engineering firm to prepare a report about the condition of the artificial surfaces in the park. The engineering firm concluded that the basketball courts needed to be resurfaced but did not advise the County that they were unsafe.
Before they were resurfaced, Plaintiff and his friends decided to play basketball on the courts. Plaintiff noticed the large crack running through the court but did not perceive that it would be dangerous to play basketball there. He proceeded to play, suffering an ankle ligament tear and fracture when his foot accidentally fell into the crack.
In its defense to the lawsuit filed by the minor, the County raised 27 affirmative defenses but did not include the Landowners Liability Act (“LLA”) as a defense. Following the Appellate Division’s published decision of Arias v. County of Bergen, which found the County immune from liability under the LLA for an injury that occurred in a county park, Middlesex County amended its answers to interrogatories to assert the LLA as a defense but did not amend its answer to assert this defense.
After discovery was complete, the County filed for a summary judgment, arguing immunity under the LLA. Based upon the interest of public policy considerations, the trial court judge permitted the County to rely upon the LLA as an affirmative defense, despite its failure to amend its answer to include it as an affirmative defense.
On the merits, the trial court judge found that the LLA did apply to this County park and determined that the County was immune from liability for the minor’s accident. Further, the court found that the “willful or malicious” exception to the LLA did not apply. Hence, the court granted the County summary judgment, dismissing the complaint.
Plaintiff appealed that decision, on both a procedural and substantive basis. He argued that the County should not have been permitted to rely upon the LLA due to its failure to include it as an affirmative defense in its answer. Further, Plaintiff argued that the County should not be immune under the LLA.
The Appellate Division noted that the LLA was enacted to provide immunity to an owner of land who gives permission to another to enter upon it for a sports or recreational activity. (N.J.S.A. 2A:42A-2). In Arias, the Appellate Division found that a pedestrian’s claim due to a fall while rollerblading on a paved path in a park in a suburban neighborhood was subject to the immunity of the LLA. It ruled that the “dominant character of the land” test should apply. This decision was later affirmed by the New Jersey Supreme Court.
Here, the Appellate Division held that it was not an abuse of discretion for the trial court to permit the County to rely upon the LLA as an affirmative defense, despite its failure to include it in its answer. The Court also agreed with the trial court that the LLA applied to this accident. The basketball courts were located in a park that was about the same size as in Arias and indisputably provided for an “outdoor sport, game and recreational activity.”
The Appellate Division also found that the LLA immunity was not overcome by the “willful” conduct exception. While one or more of the County’s employees was aware of the cracked condition of the court, none of them described it as in need of immediate repair that had to be prioritized over other maintenance of the premises.
The Court noted that the County may have been “negligent” in not repaving the basketball court sooner or fencing it off in the meantime, but that conduct did not rise to the level of “malicious” or “willful” conduct of the County. The County did not deliberately seek to harm the users of the basketball courts, nor was there evidence that the users would “likely” or “probably” be injured there.
The Appellate Division commented as to the unfortunate occurrence of the plaintiff’s accident but noted that the Legislature and the Supreme Court had limited liability under the LLA as a matter of public policy. Hence, the Court affirmed the trial court’s decision, dismissing the lawsuit.
