Family of Austin Man Killed by Falling Pecan Tree Sues Restaurant for $1 Million in Gross Negligence Claim

A Regular on Barton Springs Is Gone

Kirk Foyle was a fixture at Green Mesquite BBQ on Austin's Barton Springs Road. Friends who spoke to FOX 7 Austin said he was known as the "Mayor of Barton Springs," a regular who knew the stretch well. On the evening of May 19, 2026, he was sitting on the restaurant's outdoor patio when a large pecan tree broke near its base and fell on him.

Foyle was transported to a nearby hospital and pronounced dead on May 20. The Travis County Deputy Medical Examiner determined his cause of death was blunt trauma from being struck by a falling tree branch, according to his family's legal petition.

He was 64 years old and had four children.

What the Lawsuit Alleges

Foyle's family filed a $1 million gross negligence lawsuit in Travis County District Court, naming Green Mesquite BBQ and the property owners of the adjacent business, Aspen Hatter, as defendants.

The pecan tree, located at 1410 Barton Springs Rd, extended into Green Mesquite's outdoor patio area. The lawsuit refers to it as the "Widow Maker." According to the complaint, the tree was never pruned, inspected, or maintained by staff at either business, despite sitting on or partially on property they owned and controlled.

"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 states.

The family alleges the tree's deteriorating condition was visible and discoverable through basic inspection, and had been in that state long enough that the businesses should have caught it. The complaint says the defendants also failed to hire qualified arborists or tree care professionals to assess the risk.

FOX 7 Austin reported the family is seeking $1 million in damages covering Foyle's death, mental anguish suffered by his children, and legal costs.

Green Mesquite's Defense

Green Mesquite BBQ has argued that lightning struck the tree the night of May 19, which caused it to fall. If the tree came down because of a sudden, unforeseeable lightning strike rather than accumulated rot, the negligence argument weakens considerably.

Foyle's family and their attorney, Shawn Brown of the Law Office of Shawn C. Brown, flatly reject that account. Brown told Austin ABC affiliate KVUE that lightning did not strike the tree and that his client's death was "tragic and preventable."

"You have to be a responsible landowner," 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."

Neither claim, at this stage, has been adjudicated. The lightning question will likely be central to the litigation.

A Post-Death Financial Move That Raises Questions

FOX 7 Austin reported one detail that goes beyond standard negligence claims: seven days after Foyle's death, the property owners where the tree was located took out a $960,000 deed of trust to refinance the property. The Foyle family's lawsuit specifically flags this transaction, warning it could reduce the funds available if a judgment is rendered against the defendants.

No charges have been filed related to the transaction, and no court has ruled on its significance. But the family's attorneys have put it on the record, and a Travis County judge will eventually have to assess it.

The Standard of Care for Trees on Commercial Property

Texas property law generally requires landowners to maintain their premises in a reasonably safe condition for business invitees, a category that covers paying restaurant customers. The key legal question is whether a diseased tree counts as a known hazard the owners had a duty to address.

If the family can establish through arborist testimony that the decay was visible before May 19 and that a reasonable inspection would have caught it, the gross negligence threshold becomes achievable. If the defense can prove lightning caused the failure regardless of the tree's health, it significantly complicates that case.

Storms were moving through Austin that evening, a fact both sides acknowledge. Weather alone does not resolve the liability question. A structurally sound tree and a rotting one respond differently to the same storm.

What Comes Next

The case is pending in Travis County District Court. No trial date has been announced. The $960,000 deed of trust taken out on the property seven days after Foyle's death is already in the lawsuit record, and how the court handles that asset question could determine whether a $1 million judgment, if won, is actually collectible.