Inset: Kirk Foyle. Background: Surveillance footage reportedly shows Kirk Foyle at a Texas barbecue restaurant when a pecan tree allegedly fell and crushed him (The Law Office of Shawn C. Brown).
A Texas father of four was killed while dining at a barbecue restaurant after a “diseased” pecan tree allegedly fell on him in what his family says was a preventable tragedy, according to a lawsuit.
In a legal petition, the family of 64-year-old Kirk Foyle claims employees and operators of two nearby businesses knew — or should have known — the tree was decaying and structurally unsafe, yet failed to properly inspect it, maintain it, remove it or warn customers about the danger.
Foyle died on May 20 after he was crushed at Green Mesquite BBQ in Austin, the filing states. His family says the tree extended over an outdoor patio area where he had been eating the evening before, on May 19.
The tree, described in the petition as a hazardous “Widow Maker,” had not been pruned, inspected or cared for by Green Mesquite staff or by management at the neighboring business Aspen Hatter, the lawsuit alleges. The filing says the tree was located “on, or in part on,” property owned or controlled by the businesses.
According to the petition, the so-called Widow Maker had been in a dangerous and deteriorated condition before May 19, 2026. The family alleges the problems were visible or could have been discovered through a reasonable inspection, and that the condition had existed long enough that the defendants either knew about it or should have known through ordinary care.
Foyle was seated on the outdoor patio as storms moved through the area when the tree “suddenly and violently” snapped at or near its base and fell, the lawsuit says. The petition cites the Travis County Deputy Medical Examiner as determining that Foyle died from blunt trauma after being “struck by a falling tree branch.”
Green Mesquite has claimed the tree was hit by lightning that night. Foyle’s family and their attorneys dispute that account, arguing instead that his death was “tragic and preventable” and resulted from a failure to address the tree’s condition.
“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.
