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Liability of the Tree Owner
Liability for damage caused by trees is complex and depends primarily on the tree’s location (inside or outside a forest). A 2024 amendment to the law and the case law of the Supreme Court significantly shape the legal situation.
General Liability of Tree Owners
With the entry into force on May 1, 2024, of Section 1319b of the Austrian Civil Code (ABGB)—newly created by the Liability Law Amendment Act of 2024—a specific provision governing the liability of tree owners was established. This provision covers damage caused by trees falling over or branches falling from trees.
Under this provision, the tree owner is liable if the damage was caused by the owner’s failure to exercise the necessary care in inspecting and securing the tree. In contrast to the previous legal situation, this is a form of fault-based liability, to which the general rules regarding the burden of proof apply. This means that the injured party must now prove the owner’s fault—that is, the failure to exercise the required due care. The scope of the duty of care depends on the location, size, and condition of the tree, as well as the reasonableness of the measures taken.
The new provision thus places greater emphasis on a duty to ensure public safety based on what is reasonable. The decisive factor is whether the tree owner has taken the measures that can reasonably be expected, given the circumstances (location, condition of the tree, traffic volume). There is no general duty to inspect or monitor; rather, a risk-based assessment is required.
However, the tree owner’s liability does not apply if the injured party is on the tree owner’s property without authorization. The Supreme Court recently had to rule on this matter (Supreme Court, April 29, 2025, 9 Ob 79/24v, www.ris.bka.gv.at/jus). Specifically, a vehicle owner parked his car without authorization on another person’s property under a tree, which subsequently fell and damaged the car. According to the OGH, a person who enters a hazardous area without authorization is not entitled to protection. A duty to ensure public safety may apply only in exceptional cases, such as when persons accidentally enter the hazardous area, when persons lacking the capacity to understand the danger (e.g., children) are at risk, or when there is a completely unexpected or significant danger. In this case, however, the vehicle was deliberately parked on private property despite a no-parking sign. The Supreme Court therefore ruled that the owner was not liable for the damage caused by a falling tree, even though the owner had not conducted any tree inspections.
Liability for Trees in the Forest
For trees that are part of a forest as defined by the Forest Act (ForstG), the liability exemptions under § 176 ForstG apply. Use of the forest away from public trails is generally at one’s own risk. The forest owner is under no obligation to protect against hazards typical of the forest. The forest owner is liable for the condition of forest roads and trails in the forest in accordance with the standards of road operator liability under § 1319a of the Austrian Civil Code (ABGB). The forest owner’s liability is therefore limited to willful misconduct and gross negligence. If the condition of the forest causes damage to an adjacent road (e.g., a federal highway), the forest owner is likewise liable only in cases of intent or gross negligence.
The Supreme Court (OGH RIS-Justiz RS0132478) has clarified that the exemption from liability under § 176 of the Forest Act (ForstG) applies not only to damage occurring within the forest but generally to damage caused by the condition of the forest, including damage on neighboring properties.
Section 176(4), second sentence, of the Forest Act (ForstG) provides a special provision for cases in which damage occurs on a trail (including a public trail that runs through the forest) due to the condition of the adjacent forest (e.g., a falling tree). In such cases, the forest owner’s liability is in no event stricter than that of the trail maintainer. The forest owner’s liability for forest-related hazards affecting a path is therefore also limited to intent and gross negligence. This liability applies to the forest owner even if he is not the operator of the path in question (e.g., in the case of a state highway that runs through his forest).
Summary
Liability for trees is clearly tiered. Outside the forest, strict liability under § 1319b of the Austrian Civil Code (ABGB) applies in cases of damage. As a rule, there is no protection against persons who deliberately disregard prohibitions. Within the forest, a far-reaching exemption from liability under the Forest Act applies, which is only overcome in cases of gross negligence.
