Nearby security camera footage also showed Gregory Graham crossing the road while using a cane. It also showed Graham stopping at the median and looking both ways before crossing the road before he was struck by the cruiser, the opinion said.

Graham's blood alcohol content was 0.31 at the time of the crash, the opinion said.

Graham's estate filed a complaint against the officer—in his individual and official capacity—the Fayetteville Police Department and the city for claims of negligence, gross negligence, and wrongful death.

Cumberland County Superior Court Judge Mary Ann Tally concluded that the police department was not a proper party to the action and thus, granted summary judgment in its favor. However, Tally found there were genuine issues of material fact as to the claims against Lambert and the city, denying their motions for summary judgment.

On appeal, the defendants argued that the city has not waived governmental immunity, Lambert is entitled to public official immunity, the plaintiff did not present evidence of gross negligence, and Graham's contributory negligence bars the suit.

The plaintiff argued that the officer was speeding; the Fayetteville Police Department policy required Lambert to utilize his lights and sirens when responding to the call; the officer made lane infractions while looking at his cruiser computer—all pointing to his alleged gross negligence, the opinion said.

"I think the real root of the case is the distracted driving. Ample evidence was presented because we did have the body camera footage, we had the dashboard cam, you were able to see in the footage that he's typing on the computer, trying to figure out where to go," said the Graham family attorney, Kevin Vidunas of the Law Offices of Antonio F. Gerald.

But the majority sided with the officer.

"Our holding on the gross negligence issue is dispositive, thus we decline to consider defendants' contributory negligence argument," Judge Fred Gore wrote on behalf the majority. "We hold there is no genuine issue of material fact as to whether Officer Lambert was grossly negligent, thus defendants are entitled to judgment as a matter of law and we reverse the trial court's order denying summary judgment."

Judge Darren Jackson wrote a separate opinion, concurring in part and dissenting in part, finding there is a genuine issue of material fact regarding whether the officer was grossly negligent.

"I join the majority opinion except for the portion holding that the trial court erred in denying Defendants' motion for summary judgment on the basis that there was no genuine issue of material fact whether Office Lambert was grossly negligent when he struck Mr. Graham with his police cruiser," Jackson wrote. "In my view, the record evidence presents a genuine question of whether Officer Lambert was grossly negligent as he used his computer while speeding down Raeford Road in the middle of the night on 24 July 2018 before striking and killing Mr. Graham.

"While I cannot say the evidence shows that Officer Lambert was grossly negligent, it certainly shows that a jury could conclude that he was," Jackson added.

Lambert had one hand on the steering wheel and the other on his laptop for 18 of the 23 seconds before he collided with the pedestrian and periodically glanced at his laptop screen during that time, Jackson wrote. Additionally, dashboard camera footage shows that Lambert's lane violation appear to coincide with his looking at the computer.

Five seconds before colliding with Graham, Lambert places his second hand on the steering wheel, while three seconds prior to the crash, he distinctively leans toward his computer, Jackson wrote.

Lambert was driving on a multi-lane straightaway road to a domestic violence incident involving a firearm prior to the crash—making the officer's above-the-speed limit travel to be valid and lawful, the majority said. While his cruiser slightly deviated from its lane of travel, there was no evidence that he lost control of the vehicle, according to the majority opinion.

The majority looked to the 2014 case Truhan v. Walston (235 N.C. App. 406 (2014)), in which an officer was driving in excess of 100 mph in a 45 mph zone without lights and sirens while heading to the scene of a minor crash. The court concluded the facts in Truhan presented a genuine issue of material fact as to gross negligence. In 2015, the Supreme Court of North Carolina dismissed the City of Winston Salem's motion to file an Amicus Curiae Brief as moot (773 S.E.2d 62).

Compared to Lambert, the officer in Truhan was traveling at speeds more than double the speed limit in a densely populated area with turns and curves in the road—finding the facts to be more egregious than in Lambert's case.

With the dissenting opinion, Vidunas said there is an automatic right to appeal to the state supreme court. He is discussing options with his client.

A message seeking comment was not immediately returned from Steven A. Bader of Cranfill Sumner on behalf of the officer.