You are quite correct, Scott. The burden of proof rests with the Plaintiff in a negligence action. The scope of the engagement with a title searcher's client defines the duty that is owed. For instance if a current owner search is ordered, the scope of the engagement is to examine the land records and report encumbrances as indexed for the period of ownership. It is the Town Clerk's duty to properly post the encumbrances in the index. The defense would go that you have fully performed the engagement, and reported the encumbrances which appear as a matter of public record. Therefore the duty has not been beached because you exercised reasonable care in the performance of the duty owed. There would also be a causation defense in that the proximate cause of the Plaintiff's damages was the failure of the Town Clerk to properly index the item at issue. If someone is served as a defendant in a neglence suit, the defendant would normally cite in both the Town and the Town Clerk as codefendants or implead them as third party defendants in order to pass the liability to them. The searcher becomes the plaintiff in his claims against the Town and the Town Clerk. The searcher would produce a copy of the erroneous index page that predated the Town Clerk's correction, and introduce it to evidence. That shifts the burden of proof to the Town Clerk to prove that he/she was not negligent in indexing. The Town Clerk is going to have some difficulty in light of the correction that he/she made subsequently in the index. Connecticut's Towns and Town Clerks are not protected by the sovereign immunity doctrine that the State employees enjoy. The Town Clerks are very sensitive to their liability.A few months ago I pointed out an error in one of the Town's indices, and the Town Clerk became very nervous. She was more concerned with protecting herself against liabilty than correcting the error.

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