Liability when trees cause damage
Legal duty to maintain safety rests with the owner or keeper
In principle, tree keepers and owners are obliged to ensure that trees cannot pose a hazard to people and objects. Solicitors call this a strict liability regardless of culpability. The tree keeper can discharge this liability if he or she can provide proof of having met his or her duty of care as the tree owner or keeper/user. As per the Supreme Court of Justice, the liability under paragraph 1319 of the Civil Code of Austria is also extended to trees.
This can take the form of a regular inspection by a specialist company or tree expert. With these measures the tree keeper would have adequately met his or her duty of care, provided he or she also implements the prescribed measures. This can include removing the deadwood from the tree crown or removing dangerous branches and ultimately also cutting down the tree. This does not, however, mean that the tree owner or keeper has to live in fear of whether or not a tree poses a hazard. This is because trees are not regarded as posing a hazard by their very presence and the fact that they can fall over if something acts upon them. On the contrary, liability only arises if the increased hazard can be demonstrably traced back to a defect.
Trees also speak a language
The tree owner or keeper (user) should regularly monitor changes. Treetop dryness, dead and falling branches, fungal infestation, dead wounds (cut surfaces), severe listing, reduced leaf size, yellow or brown needles, deadwood, bulges on the trunk and damaged roots are some indications that there may be a problem with a living tree. You should not overlook the age of a tree, either. In a case like this, the tree owner or user must obtain specialist advice in order to meet his or her duty of care. The person consulted must have the necessary specialist knowledge, and must also confirm in writing that the tree does not pose a hazard. The requirement to have this in writing is in case a third party nevertheless suffers injury. The tree owner or user is then well protected against any liability. He or she has proof of having taken all necessary steps to avert the hazard. The tree keeper has thus met his or her legal duty to maintain safety.
Note about third parties
In reality, it is often neighbours who see a tree as a threat or hazard. A verbal notification about the matter should be considered first. Only if the tree owner or user does not respond to the notification should it be written down, in order to be protected in the event of any damage. This is because a notification from a third party is already a sign that action is required as a tree owner or user.
A tree owner or user is only liable if the hazard was identifiable. If the tree owner or user does not respond to what the tree is telling him or her or to the notification from a neighbour, then liability is very probable and compensation will be due.
It can be deduced from case law that force majeure can be assumed if an extraordinary event that does not normally occur acts from without, resulting in damage that cannot be averted even with the greatest of care. Liability for damage does not generally apply in cases where there is force majeure.
If it can be proven that the tree would have caused damage even in the absence of the extraordinary event due to serious defects, the tree owner or user is still liable. It is important to note this because otherwise it might give the impression that there would be no liability for a tree that was visibly in danger of breaking in the event of an extreme weather event.
Insurance against storm damage
Conditions are considered stormy at wind force 8, which is equivalent to 40 mph. Insurance is available for storm damage. A situation could arise where an extreme weather event occurs and a tree belonging to the neighbour causes damage in my garden. If it is a healthy tree that caused damage during an extreme weather event (force majeure), then the neighbour's liability insurance will reject the damage. If, however, you have storm damage insurance, then your own insurance will accept the damage because culpable conduct on the part of the neighbour cannot be proven if the tree was healthy. The same goes for cars damaged by a falling tree or broken-off branch as a result of force majeure. In this case, comprehensive insurance will cover the damage to the car. If there is no storm damage or comprehensive insurance in place, the aggrieved party will generally have to foot the bill for the costs.
Trees on rented and leased land
The renter or leaseholder becomes the keeper of the trees and therefore is also responsible for the legal duty to maintain safety. It is, however, also possible to arrange the rental contract so that the legal duty to maintain safety remains with the owner.
Trees are valuable and important for our habitat. As a result, however, the tree owner or user has a special responsibility that he or she must also act upon in order to protect people and objects.
- §1319. If someone is injured or otherwise damage is caused due to collapse or detachment of a part of a building or other works carried out on a plot, the owner of the building or works has an obligation to pay compensation if the event is the result of the defective condition of the works and he or she does not provide proof of having taken all necessary care to avert the hazard.
Please note that all information in this article is based on Austrian law. The situation may be different in other countries.
VIKING garden expert
Tree keepers also have a duty of care, which they are often not aware of.