An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-483
                
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NORTH CAROLINA COURT OF APPEALS
        
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Filed: 4 February 2002

LISA HOLLIFIELD, Administratrix
of Estate of Marie Self; REVONDA
TOWE, Administratrix of Kathy
Marie Styles; TONY SELF,
Administrator for Toni Ruth Self,
    Plaintiffs,                    Catawba County
                                No. 01 CVS 2304
v .                         
                            
CITY OF HICKORY d/b/a THE CITY
OF HICKORY POLICE DEPARTMENT,
C.J. DEAL, DAN CARLSEN, D.M.
STEWART and LT. STEVE BRYANT,
    Defendants.

    Appeal by plaintiffs from order entered 3 October 2001 by Judge Beverly T. Beal in Catawba County Superior Court. Heard in the Court of Appeals 8 January 2003.

    C. Gary Triggs for plaintiff-appellants.

    Patrick, Harper & Dixon, L.L.P., by David W. Hood, for defendant-appellees.

    MARTIN, Judge.

    Plaintiffs are the personal representatives of Marie Self, Kathy Marie Styles and Toni Ruth Self (“decedents”) who were killed in an automobile collision which occurred 17 February 1997 in Hickory, N.C. Plaintiffs brought this action against the City of Hickory and four law enforcement officers employed by the City seeking compensatory and punitive damages.
    In their complaint, plaintiffs alleged that the collision in which decedents were killed occurred as a proximate result ofnegligence on the part of one Javior Uresti (“Uresti”). According to the allegations of the complaint, notwithstanding the existence of probable cause to arrest Uresti for driving while impaired and other violations, the defendant officers did not detain, arrest, or charge Uresti with any criminal offense in connection with the accident because he was an informant for the department and for the Catawba County Sheriff's Department. Plaintiffs alleged that defendant officers' failure to arrest, charge, or place Uresti under bond was “in direct violation of the policies and procedures of [the Hickory Police Department] and constituted negligence on their part” and that the City's failure to properly supervise the officers was also negligence. Plaintiffs alleged that, as a proximate result of such negligence, Uresti was able to secret or dispose of sizable assets and flee from the jurisdiction “thereby limiting or preventing recovery on the part of the Plaintiffs.” Plaintiffs also alleged that defendant City of Hickory, through the purchase of liability insurance or self-insurance covering all defendants “in their representative capacities,” had waived governmental and quasi-governmental immunity to the extent of the coverage limits.
    Defendants moved to dismiss the complaint for insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief may be granted. N.C. Gen. Stat. § 1A-1, Rule 12(b)(4), (b)(5), (b)(6) (2002). Deferring a hearing upon the other motions, the trial court heard only the Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief could begranted. The trial court granted the motion and plaintiffs appeal.

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    The sole issue presented by this appeal is whether the public duty doctrine prevents plaintiffs from recovering upon the allegations of their complaint. We hold that it does and affirm the trial court's order dismissing this action.
    A motion to dismiss pursuant to G.S. § 1A-1, Rule 12(b)(6) challenges the legal sufficiency of the complaint. Isenhour v. Hutto, 350 N.C. 601, 604-05, 517 S.E.2d 121, 124 (1999). In evaluating the complaint, the trial court must accept the allegations as true and liberally construe the complaint to determine whether the plaintiff could recover under some recognized legal theory. Id. Dismissal is proper where the face of the complaint reveals (1) that no law supports the claim, (2) the absence of facts necessary to support the claim, or (3) the existence of facts which necessarily defeat the claim. Wood v. Guilford County, 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citing Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222 (1985)).
    Plaintiffs' complaint is couched in negligence. “Actionable negligence occurs only where there is 'a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed.'” Wood, 355 N.C. at 166, 558 S.E.2d at 494, (quoting Mattingly v. N.C.R.R. Co., 253 N.C. 746, 750, 117 S.E.2d 844, 847 (1961)). Our Supreme Court has held, in recognizing the legal principle known as the public duty doctrine in this State, that “in the context of theprovision of police protection by a local government, the duty breached must be more specific than a duty owing to the general public.” Wood, 355 N.C. at 166, 558 S.E.2d at 495. The public duty doctrine establishes that a local government, in providing law enforcement protection, acts for the benefit of the general public and owes no duty of protection to specific individuals. Id. Thus, if no duty is owed to specific persons, there can be no liability for a negligent breach thereof. Id. The rule is subject to two exceptions, in which a duty of protection exists: (1) where there is a special relationship between the injured party and the police, and (2) where the local government creates a special duty by promising protection to a specific individual. Braswell v. Braswell, 330 N.C. 363, 370-71, 410 S.E.2d 897, 901-02 (1991), reh'g denied, 330 N.C. 854, 413 S.E.2d 550 (1992) (citations omitted). There are no allegations, and no contention, that either of the exceptions is applicable here. Because the complaint alleges no facts to show that defendants owed any duty to plaintiffs or their decedents individually, plaintiffs' claims based on defendants' allegedly negligent acts and omissions are barred by the public duty doctrine.
    Plaintiffs argue, however, that application of the public duty doctrine in this context violates their rights to equal protection of the laws and due process as protected by the U.S. Constitution. U.S. Const. amend. XIV, § 1. The transcript of the motion hearing reveals that no such argument was made to the trial court; where a constitutional question is not raised and ruled upon in the trialcourt, it will not be considered on appeal. State v. Call, 353 N.C. 400, 545 S.E.2d 190, 534 U.S. 1046, 151 L. Ed. 2d 548 (2001). In any event, plaintiffs have cited no authority in support of their constitutional argument and have demonstrated no difference of constitutional magnitude between this case and others in which the doctrine has been applied which would preclude its application here. See, e.g., Stafford v. Barker, 129 N.C. App. 576, 502 S.E.2d 1, disc. review denied, 348 N.C. 695, 511 S.E.2d 650 (1998) (suit against sheriff for negligent release of prisoner who then shot and killed plaintiff's husband in armed robbery barred by public duty doctrine); Hull v. Oldham, 104 N.C. App. 29, 407 S.E.2d 611, disc. review denied, 330 N.C. 441, 412 S.E.2d 72 (1991) (public duty doctrine barred suit against sheriff where sheriff's department failed to respond to calls advising that mentally disturbed man carrying a gun was threatening family members and man then went on public shooting spree ending in three deaths).    
    Finally, plaintiffs suggest that defendants' actions, as alleged in the complaint, were such as to be indicative of intentional conduct. While it is true that the public duty doctrine does not protect a municipality and its law enforcement agents from liability for intentional misconduct, Little v. Atkinson, 136 N.C. App. 430, 482, 524 S.E.2d 378, 380, disc. review denied, 351 N.C. 474, 543 S.E.2d 492 (2000), the complaint in this case falls far short of alleging an intentional tort. The complaint contains no allegation of any intent on the part of defendants to cause harm to plaintiffs or their decedents by theirfailure to arrest Uresti. See Lynn v. Burnette, 138 N.C. App. 435, 531 S.E.2d 275 (2000) (intentional tort requires an actual or constructive intent to harm).
    The order dismissing plaintiffs' complaint for failure to state a claim upon which relief can be granted is affirmed.
    Affirmed.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

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