Fault or Risk? A Comparative Study on the Liability for Damage Caused by Trees

In the last twenty-five years, legal problems associated with trees have occupied the legal practice more frequently than before: damage during storms and hurricanes, tree root penetration into neighbouring estates, overhanging branches, impairment by falling leaves, needles or other small tree parts, encroachment of boundary lines, etc. The increase of such conflicts is due to the increasing frequency of extreme weather events, the active engagement of communities and states in the 'tree culture' by means of tree protection ordinances or statutes, and the change of settlement and traffic patterns, particularly smaller land parcels, intermixed zones, and denser road networks. The comparative study focuses on damage caused by fallen or broken trees, tree root cases, and impairment by fallen leaves and other small tree parts. It concentrates on German and French laws. With regard to storm damage caused by trees, references are also made to Swiss and Austrian legal solutions. Above all, the article deals with the treatment under private law, but insurance law and public law aspects are also considered. The critical questions to ask are whether the legal treatment in Germany and France adequately addresses the changed challenges and whether the French legal practice, which is mainly based on risk liability, suggests solutions that might be utilized in German jurisprudence and in a future European legal framework.