Inset: Kirk Foyle. Background: Surveillance video showing Kirk Foyle at the Texas BBQ restaurant when a pecan tree allegedly fell and crushed him (The Law Office of Shawn C. Brown).
A Texas father of four eating at a BBQ joint was "fatally crushed by the preventable falling" of a "diseased" pecan tree, with staff at two local businesses letting it rot and decay without warning patrons or doing anything to maintain it, a lawsuit says.
"Defendants knew, or in the exercise of reasonable care should have known, of the dangerous, diseased, decayed, and/or structurally compromised condition of this tree and failed to inspect, maintain, remove, and/or warn of its dangerous condition," a legal petition filed by Kirk Foyle's family alleges.
Foyle, 64, died on May 20 after being crushed at Green Mesquite BBQ in Austin, the petition says. The tree that killed him was hanging over an outdoor patio area where Foyle was eating on the evening of May 19, his family alleges.
The "hazardous" tree — referred to as a "Widow Maker" — was never pruned, inspected, or maintained by restaurant staff or management at a neighboring business, Aspen Hatter, despite being "located on, or in part on, property owned and controlled" by the businesses, according to the petition.
"Prior to May 19, 2026, the Widow Maker was in a dangerous, compromised, decayed, diseased, and/or structurally defective condition," the petition says. "Upon information and belief, the Widow Maker's dangerous condition was visible, apparent, or discoverable upon reasonable inspection, and had existed for a sufficient period of time that defendants knew or, in the exercise of ordinary care, should have known of its condition."
According to Foyle's family, he was on the outdoor patio when the tree "suddenly and violently broke at or near its base and fell" while storms were moving through the area. "Mr. Foyle's cause of death was blunt trauma sustained as a result of being 'struck by a falling tree branch,' according to the Travis County Deputy Medical Examiner," the family's petition says.
Green Mesquite has alleged that the tree was struck by lightning that night. Foyle's family and their attorneys say this never happened, and instead blame his "tragic and preventable death" on the lack of upkeep.
"You have to be a responsible landowner," attorney Shawn Brown told local ABC affiliate KVUE. "You need to make sure that if you have a tree on your property, that if it is sick, that you remove it, that you take care of it so that situations like this do not happen."
Brown says Foyle had "four beautiful kids" who lost their father through "no fault of his own," KVUE reports. "People need to be held responsible," he told the station.
The family's legal petition, which was filed last week, says Green Mesquite and Aspen Hatter failed to inspect the tree for "signs of disease, decay, structural weakness, or instability." The businesses also allegedly failed to "engage qualified arborists or tree care professionals to assess the condition" of the tree.
Additionally, the businesses failed to warn patrons, guests and neighboring businesses of the "dangerous condition" of the tree; failed to take "adequate precautions" to prevent the tree from falling onto adjacent occupied areas; and failed to erect barriers, fencing, or other protective measures near the tree.
Foyle's family is seeking at least $1 million in damages.
"I was shocked, I couldn't believe it," Green Mesquite co-owner Rick Garcia told KVUE in May after Foyle's death. "We're all under trees all the time and hanging out, and you just never think that something like that could happen."
Brown told the Austin American-Statesman, "If they're going to have an outdoor patio that is bringing crowds of people below these beautiful trees, they need to make sure that they maintain them on a regular basis."
Both Aspen Hatter and Green Mesquite declined to comment on the lawsuit when reached by the American-Statesman.