Evidence

Fact pattern

Several elementary school children complained about the taste and appearance of the water in their school’s drinking fountains. The parents, at their own expense, obtained a sample of the water and had it tested at a water-quality laboratory. The results indicated that the levels of lead, arsenic, and other contaminants in the water exceeded the Environmental Protection Agency’s (EPA) allowable limits. The school is required by federal law to follow the EPA’s standards.

Once local media publicized the test results, the school’s principal immediately shut off the school’s water supply. The school board then contracted with a toxic-substance remediation firm to identify and eliminate the source of the contaminants. A reporter discovered that the school board granted the firm a no-bid contract, meaning the firm did not have to compete with others for the contract. This revelation encouraged several parents to question the firm’s reliability and competence. The parents also questioned whether the firm’s remediation efforts would be effective.

During the remediation, the firm’s engineering team turned the water back on to take intermittent samples for testing. To keep anyone from drinking the water, the firm placed bright yellow tape around the school’s sinks and faucets, along with signs reading “Do not drink!” 

One late evening two weeks into the remediation work, after all students and staff had left for the day, the lead engineer on the project said aloud, “Wow, I’m thirsty.” He took an insulated container from his bag, opened it, and tried to drink from it. Alas, the container was empty. The lead engineer then filled the container with water from one of the school’s drinking fountains. Another engineer asked, “Is that safe?” The lead engineer nodded and replied, “Yeah, we’re about done with our work.” He then took a long drink from the insulated container.

Soon after, the remediation firm declared that it had completed its work. The school principal immediately convened a meeting with all interested parents, where the principal announced that the water was safe. The next day, some students told their parents that they saw the principal using a water filter to purify water from a drinking fountain in the school.

Six families sued the school district for negligence. The families claimed that their children suffered harm from drinking both the pre-remediation and post-remediation water, because the school district did not use reasonable care to prevent that foreseeable harm. Assume that the jurisdiction has adopted the Federal Rules of Evidence (FRE), and that the principal’s announcement that the water was safe is admissible in evidence against the school district. 

Questions

1. If the families request to admit evidence that the water pipes had to be remediated, in order to show that the school district negligently overlooked the contamination of its water, how should the trial judge rule on the school district’s objection to this request? Explain.
2. If the families request to question the principal about her using a water filter after the remediation was completed, to show that the water supply remained dangerous post-remediation, how should the trial judge rule on the school district’s objection to this request? Explain.
3. If the school district seeks to admit the lead engineer’s testimony that he drank water from the school drinking fountain, to show that the post-remediation water was safe, how should the trial judge rule on the families’ objection to this request? Explain, assuming that the lead engineer is available to testify.