John E. Marshall and Helen A. Marshall V‪.‬

Action by John E. Marshall and Helen A. Marshall against the City of Green Bay to recover damages due to the alleged negligence of the city in the supervision, maintenance, and operation of a toboggan hill or run located outside of the corporate limits of the city in the town of Preble, Brown county. The complaint alleges the plaintiff-wife on February 19, 1961, was using the hill as a member of the public and was thrown from the toboggan as a result of its striking a patch of frozen hummocks at the bottom of the hill. The plaintiff-wife was seriously injured and the plaintiff-husband sustained damages for medical expenses and loss of services and consortium. The complaint further alleges the city's common council disallowed the plaintiffs' claim and the city carried liability insurance with the Continental Casualty Company covering any liability of the city for its supervision, operation and maintenance of the toboggan hill with $50,000 and $200,000 limits. The policy by its terms required that notification of any legal action be sent to the insurance company, that the company will defend the action at its own expense and that the company will not avail itself of the defense that the city is not liable because of the performance of governmental functions. The city demurred to the complaint. At the time the demurrer was argued before the trial court, this court had under consideration the case of Holytz v. City of Milwaukee (1962), 17 Wis. 2d 26, 115 N.W.2d 618, and the trial court delayed its decision. After the decision in that case was announced by this court abolishing governmental immunity prospectively, the trial court sustained the demurrer. The plaintiffs appeal.