A Green Mesquite tree death lawsuit filed in Travis County District Court alleges that two Austin businesses knew a diseased pecan tree hanging over a busy outdoor patio was hazardous, yet failed to inspect, maintain, or remove it before it crushed and killed a 64-year-old father of four.
Kirk Foyle died on 20 May after being struck by the tree on the evening of 19 May while eating at Green Mesquite BBQ on Barton Springs Road in Austin, Texas. Three of Foyle’s children have filed the wrongful death and negligence petition, according to the Austin American-Statesman, naming as defendants Green Mesquite, the owner of the property it occupies, neighbouring hat shop Aspen Hatter, and its owner Chris Roberts, among others.
The Green Mesquite Tree Death: What the Petition Alleges
The pecan tree was physically rooted at 1410 Barton Springs Road, next door to Green Mesquite at 1400 Barton Springs Road, but its canopy extended over the restaurant’s outdoor patio area where Foyle was seated, the AOL wire report notes. The petition refers to the tree as a ‘Widow Maker’ and alleges it was ‘located on, or in part on, property owned and controlled’ by both businesses.
‘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.
Foyle was on the patio when the tree ‘suddenly and violently broke at or near its base and fell’ as storms moved through the area. The Travis County Deputy Medical Examiner recorded his cause of death as blunt trauma sustained from being ‘struck by a falling tree branch.’
Green Mesquite has maintained the tree was struck by lightning that night. Foyle’s family and their legal team dispute that account, attributing his death solely to the absence of routine arboricultural upkeep.
The petition sets out a series of specific failures: neither business inspected the tree for signs of disease, decay, or structural weakness; neither engaged qualified arborists; neither warned patrons or neighbouring properties of any risk; and neither erected barriers or fencing below the tree’s canopy.
A Deed of Trust Filed Days After the Fatality
Beyond the negligence claims, the lawsuit raises a financial allegation. According to FOX 7 Austin, the property owners took out a $960,000 deed of trust just seven days after Foyle’s death. The family alleges the move could limit the funds available if a judgment is ultimately rendered against the defendants.
The family is seeking at least $1 million in damages.
‘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 told the 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 Green Mesquite and Aspen Hatter declined to comment on the lawsuit when approached by the American-Statesman.
Foyle was a well-known presence along Barton Springs Road. Friends told CBS Austin he had earned the nickname the ‘Mayor of Barton Springs,’ and Green Mesquite’s co-owner described him as ‘more than a regular, he was family.’
Green Mesquite itself had only recently stabilised after a difficult period: the Austin American-Statesman reported that the business had been saved from financial ruin by a group of longtime employees who took over its running, making Foyle’s death all the more painful for those connected to the restaurant.
The central factual dispute, whether the tree fell because of a lightning strike or because of years of unchecked decay, is likely to determine the outcome. If the family’s account holds, the case will turn on whether the defendants had, or should have had, actual notice of the tree’s deteriorating condition in sufficient time to act. The deed-of-trust allegation adds a separate dimension: the court may be asked to examine whether that transaction should affect the pool of assets available to satisfy any award.
The petition was filed last week. Subject to any procedural developments, the next step will be the defendants entering their formal response in Travis County District Court, at which point the lightning-strike defence is likely to be tested under the rules of civil evidence.
