## Facts

- A hill in Colorado Springs separated two adjoining properties: Vikell Investors Pacific, Inc. owned an apartment complex (Woodstone Apartments) at the top of the hill, and Kip Hampden, Ltd. owned a car dealership property at the bottom.
- In 1987, Kip Hampden decided to grade the base of the hill and expand a parking lot for the dealership.
- Kip Hampden hired George Morris and his company, Lincoln DeVore, Inc., as engineering consultants to assess whether excavation could be done safely and to plan the work.
- After testing slope stability, Morris identified water seepage and warned the hillside was subject to movement and landslides, but he also provided a detailed plan for proceeding with the grading and parking lot expansion.
- Kip Hampden carried out the project and removed thousands of cubic yards of soil from the base of the hill.
- In 1989, Vikell purchased the Woodstone apartment property after it had fallen into disrepair following the prior owner’s bankruptcy.
- After the purchase, Vikell investigated structural and site problems, including foundation cracking and other conditions consistent with ground movement.
- A soils engineer retained by Vikell stated the buildings were moving and identified possible causes that included expansive soils, slope instability, and settlement tied to consolidation of non-compacted fill used during the original construction.
- Years later, Vikell was advised that Kip Hampden’s excavation at the bottom of the hill had contributed to the slope’s subsidence.
- As conditions worsened, Vikell ultimately abandoned and demolished two apartment buildings.
- Vikell sued Kip Hampden asserting strict liability (and related theories) for withdrawal of lateral support and also asserted claims against Morris and Lincoln DeVore, Inc., including breach of fiduciary duty.
- A jury returned a defense verdict for Kip Hampden, and the trial court directed a verdict for Morris and Lincoln DeVore, Inc. on the fiduciary-duty claim. Vikell appealed.

## Issues

1. Whether the trial court committed reversible error in allowing the jury to return a defense verdict on Vikell’s strict-liability claim for subsidence based on loss of lateral support, given evidence that the uphill property was not in a purely natural condition and that other causes of movement were supported by the record.
2. Whether Vikell was entitled to reversal based on its theories seeking to impose liability on Kip Hampden for the excavation and related engineering work despite the jury’s finding of no liability.
3. Whether the trial court properly directed a verdict for Morris and Lincoln DeVore, Inc. on Vikell’s claim for breach of fiduciary duty.

## Decision

- The Colorado Court of Appeals affirmed the judgment entered on the jury’s verdict finding Kip Hampden not liable for subsidence damage to Vikell’s property.
- The court upheld the trial court’s handling of strict-liability/lateral-support issues, including the submission of causation and the effect of altered land conditions and improvements to the jury.
- The court affirmed the directed verdict for Morris and Lincoln DeVore, Inc. on breach of fiduciary duty because the evidence did not establish a fiduciary relationship between the engineer and Vikell.
- The court left intact the trial outcome in full (affirmed).

## Legal Principles

- Under Colorado lateral-support doctrine, strict liability for excavation-related subsidence protects adjoining land in its natural condition; damage associated with improvements or materially altered conditions does not automatically fall within strict liability.
- When the evidence supports multiple potential causes for movement (including preexisting soil conditions and construction-related fill or settlement), causation and allocation are fact questions for the jury, and an appellate court will not reweigh conflicting testimony resolved by the jury.
- A party seeking strict liability for loss of lateral support must still connect the excavation to the claimed subsidence under the governing limits of the doctrine, particularly where the uphill parcel includes substantial development and other contributing conditions.
- A fiduciary relationship requires a special relationship of trust and confidence in which one party assumes a duty to act primarily for the benefit of the other; a consultant’s professional role for one party, standing alone, does not create fiduciary duties to a nonclient neighbor.
- An engineer retained by the excavating landowner to evaluate and plan the work does not, without additional facts showing a special relationship, owe a fiduciary duty to the adjacent landowner affected by the excavation.

## Conclusion

The court affirmed a defense verdict in a hillside subsidence dispute arising after a downhill landowner excavated for a parking-lot expansion, holding that the case properly went to the jury on causation and on the limited scope of strict liability for loss of lateral support where the uphill property was improved and other causes were supported by the evidence, and also holding that the excavator’s engineering consultant owed no fiduciary duty to the neighboring uphill owner as a matter of law.


Vikell Investors Pacific, Inc. v. Hampden, Ltd., 946 P.2d 589 (1997)