Summary
In Fukelman v. Middletown, 4 Conn. App. 30 (1985), the Appellate Court found that costs may be taxed against a municipality under § 13a-149 but cannot be taxed against the state under § 13a-144.
Summary of this case from Hardt v. Town of WoodstockOpinion
(2235)
The defendant city of Middletown appealed from the judgment rendered against it in the plaintiff's action to recover damages for injuries she sustained in a fall on a city sidewalk. Held: 1. The factual findings challenged by the defendant were supported by the evidence and were not clearly erroneous. 2. The defendant's claim to the contrary notwithstanding, a municipality is not exempt from the taxation of costs.
Argued February 28, 1985
Decision released May 14, 1985
Action to recover damages for personal injuries sustained in a fall on an allegedly defective sidewalk, brought to the Superior Court in the judicial district of Hartford-New Britain at New Britain and tried to the court, Doyle, J.; judgment for the plaintiff, from which the defendant appealed to this court. No error.
Francis O'Neill, city attorney, for the appellant (defendant).
William C. Galligan, for the appellee (plaintiff).
The plaintiff instituted this action against the defendant city pursuant to General Statutes 13a-149 for injuries sustained as a result of a fail upon a defective sidewalk. The trial court rendered judgment awarding the plaintiff damages plus costs. The defendant appealed, claiming that the trial court erred: (1) in concluding that the defendant had constructive notice of the defect; (2) in concluding that the defect was the sole proximate cause of the injuries; (3) in accepting the testimony of the plaintiff's doctor; and (4) in awarding costs.
The first, second and third claims of error attack the trial court's findings of fact. Questions of fact are to be determined solely by the trial court. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Connecticut National Bank v. Nagy, 2 Conn. App. 448, 449, 479 A.2d 1224 (1984). The weight given the evidence and the credibility of the witnesses are likewise within the province of that court. Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982). "This court will not reverse the decision of the trial court unless it is found to be `clearly erroneous in light of the evidence and the pleadings in the record as a whole.' Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book 3060D." Contoura Business Products, Inc. v. TLD, Inc., 1 Conn. App. 690, 692, 474 A.2d 1265 (1984), quoting Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983). A review of the memorandum of decision and the record indicates that the court's conclusions are legally and logically correct and are supported by the facts set out in the memorandum of decision. The facts set out in the memorandum are supported by the evidence, and, on the basis of the whole record, those facts are not clearly erroneous.
As to the fourth claim of error, the defendant asserts that costs may not be taxed against a municipality in the absence of statutory authority.
During oral argument, the plaintiff represented that a bill of costs was presented to the clerk, who has not yet taxed costs. Although the procedure for taxing costs as provided by Practice Book 412 has not been followed in this case, this fourth claim of error will be considered, in the interests of judicial economy, the parties having fully briefed the claim.
Costs which are taxable in civil actions are fixed by statute. General Statutes 52-257; Verrastro v. Sivertsen, 188 Conn. 213, 217, 448 A.2d 1344 (1982). Contrary to the defendant's claim, a municipality is not exempt from the taxation of costs, as is the state. Costs cannot be taxed against the state in the absence of a statute specifically allowing such taxation. State v. Chapman, 176 Conn. 362, 366, 407 A.2d 987 (1978). This rule is based on the principle of sovereign immunity of the state. Unlike the state, a municipality has no sovereign immunity. Murphy v. Ives, 151 Conn. 259, 264, 196 A.2d 596 (1963).
In the absence of a specific statutory exception or prohibition, General Statutes 52-257 applies to the defendant. There is no such exception in General Statutes 52-257 or in General Statutes 13a-149, pursuant to which this action was brought. In comparison, General Statutes 13a-144, which permits similar actions against the state for damages sustained on a state highway, bridge or sidewalk, specifically states that "no costs or judgment fee in any such action shall be taxed against the defendant." We conclude that costs may properly be taxed against the defendant municipality in an action brought pursuant to General Statutes 13a-149.