These two cases arise from an action by plaintiff Janice Rainey against defendants City of East Point, Willie J. Hinеs, James A. Lowe, and Ronnie Few for the wrongful death of her husband, Daniel Rainey. Daniel Rainey drowned while swimming in the Rаndall Street Pool on July 10, 1981. The pool is operated for public use by the City of East Point. At the time of the incidеnt Willie J. Hines, an employee of East Point, supervised the pool as part of his duties as recreatiоn supervisor. Pool hours for the public were from 9:00 a.m. to 8:00 p.m.
Hines was approached by a private group who sought use of the pool after hours for a night swimming party. The group wanted to raise funds to aid Hines in his recreation work. Hines gave permission to the group to use the pool on condition that they obtain sufficient lighting for night swimming, two lifeguards, and sufficient security to prevent people from entering over the fence. The group held the party, charged admission, and operated a concession stand. The prof *894 its dеrived were given to Hines to use in his discretion to aid his recreational efforts. No money ever went into thе treasury of East Point. It was at this function that Daniel Rainey died.
Each of the defendants below moved for summary judgmеnt. The trial court granted the motion regarding East Point, but denied the motions regarding the remaining defendants. In casе number 69342, Rainey appeals the grant of summary judgment to East Point. In case number 69343, Lowe and Few appeаl the denial of their motions for summary judgment. We will consider each in turn.
Case No. 69342
The trial court granted summary judgment to East Point on the basis of sovereign immunity and that the maintenance of the pool did not constitute a nuisance as сlaimed by Rainey. The operation of a public swimming pool is a governmental function, and cities are immune from suits in negligence regarding pool operation by the doctrine of governmental or soverеign immunity.
Scott v. City of Millen,
Applying these guidelines to the case аt bar, we find that the trial court did not err in granting summary judgment to East Point. The act of a city employee allowing night swimming on the night of July 10, 1981 is but a single act of alleged negligence. Contrary to Rainey’s argument, East Point did not operatе the pool in a defective condition. When the expense of keeping lights in the pool in repаir became too burdensome, the City ceased operating the pool at night. The record shows thаt East Point operated the pool in compliance with county regulations as a day pool frоm 1975 to the date of this incident. The only exception of record is a single instance in 1978 when a private night party such as the one in this case was permitted. Lights were installed for night swimming on that occasion. Thereforе, the operation of the pool on the night of July 10, 1981 was clearly not a nuisance within the guidelines set out in Gunnells, supra, and the *895 grant of summary judgment to East Point was not in error.
Case No. 69343
Dеfendants Lowe and Few argue that the trial court erred in denying their motions for summary judgment because there is no issue of material fact that Daniel Rainey assumed the risk of swimming while in an impaired condition. The record shows a blood alcohol test taken after Daniel Rainey’s death measured 0.25 grams percent. The record also shows that Daniel Rainey was an epileptic who regularly took Dilantin, an anti-seizure medicаtion. The record shows he was aware that it was dangerous to mix alcohol with the medication. Plaintiff Janice Rainey adduced an affidavit to the effect that on the night of July 10, 1981 no one manned the lifeguard chairs or patrolled the pool area; that Lowe and Few, the organizers of the party, and who undertoоk lifeguard duties, were instead dancing and consuming alcoholic beverages. There is evidence in the rеcord that notwithstanding the advice of doctors, plaintiff’s decedent regularly consumed alcohol whilе taking his anti-seizure medication, yet had suffered no seizures as a result of that combination.
“ ‘The defense of assumption of risk presupposes (1) that the plaintiff had some actual knowledge of the danger; (2) that hе understood and appreciated the risk therefrom, and (3) that he voluntarily exposed himself to such risk.’ ”
Abee v. Stone Mtn. Memorial Assn.,
Judgments affirmed.