A Texas father of four was enjoying a meal at an Austin BBQ restaurant when a massive pecan tree came crashing down on him, killing him in what his family now calls a tragic and preventable death.
Kirk Foyle, 64, died May 20 after he was struck and crushed by a falling tree at Green Mesquite BBQ in Austin, according to a legal petition filed by his family.
The lawsuit claims the tree was diseased, decayed and structurally dangerous long before it fell over an outdoor patio area where Foyle had been eating the evening of May 19.
His family says the pecan tree, described in the petition as a “Widow Maker,” should have been inspected, maintained, pruned, removed or at least marked as a danger before it broke and fell.
“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,” the petition alleges.
The lawsuit names Green Mesquite BBQ and the neighboring business Aspen Hatter, saying the tree was located on, or partly on, property owned and controlled by the businesses.
According to the petition, the tree had been in a “dangerous, compromised, decayed, diseased, and/or structurally defective condition” before it fell. The family claims its condition was visible, apparent or discoverable through a reasonable inspection and had existed long enough that the businesses should have known about it.
Foyle was on the patio when the tree “suddenly and violently broke at or near its base and fell” as storms were moving through the area, according to the petition.
The Travis County Deputy Medical Examiner listed Foyle’s cause of death as blunt trauma from being “struck by a falling tree branch,” the family said.
Green Mesquite has said the tree was struck by lightning that night. But Foyle’s family and their attorneys dispute that, arguing the tree did not fall because of a freak lightning strike. They say it fell because it had been left to rot without proper care.
“You have to be a responsible landowner,” attorney Shawn Brown told 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 said Foyle had “four beautiful kids” who lost their father through “no fault of his own.”
“People need to be held responsible,” he told the station.
The legal petition, filed last week, accuses Green Mesquite and Aspen Hatter of failing to inspect the tree for signs of disease, decay, structural weakness or instability. It also says the businesses failed to bring in qualified arborists or tree care professionals to assess the tree’s condition.
The family also claims the businesses failed to warn patrons, guests and neighboring businesses about the tree, failed to take adequate precautions to stop it from falling into occupied areas and failed to put up barriers, fencing or other protective measures around it.
Foyle’s family is seeking at least $1 million in damages.
After Foyle’s death in May, Green Mesquite co-owner Rick Garcia told KVUE he was stunned by what happened.
“I was shocked, I couldn’t believe it,” Garcia said. “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 that businesses with outdoor dining areas have a duty to make sure those spaces are safe.
“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,” he said.
Both Aspen Hatter and Green Mesquite declined to comment on the lawsuit when reached by the American-Statesman.
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