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A lawsuit filed against a North Carolina police officer who fatally struck a pedestrian while responding to a call should not be allowed to proceed, the state Court of Appeals ruled, saying there is no evidence the officer acted in a grossly negligent manner.

Tuesday’s majority opinion by the three-judge panel reversed a trial court decision that had given the go-ahead to a lawsuit filed by Gregory Graham’s estate against Officer Ashton Lambert and the city of Fayetteville.

Lambert was responding to a report of domestic violence involving a weapon when he hit Graham with his cruiser as Graham was walking across a seven-lane road late at night in July 2018.

Lambert was traveling 53 mph (85 kph) in a 45-mph (72-kph) zone without his emergency lights and siren on when his vehicle struck Graham, the court notes in its opinion.

Based on body camera footage, the officer had looked at and touched his laptop computer in the cruiser while driving and his vehicle deviated slightly from the lane it was traveling in just before the collision. Graham was crossing a portion of the road that had no pedestrian crosswalk but was well lit.

“We conclude that Officer Lambert’s actions were acts of discretion on his part which may have been negligent but were not grossly negligent,” Judge Fred Gore wrote in the majority opinion. Judge John Tyson agreed with Gore.

Court of Appeals Judge Darren Jackson, writing a separate opinion, said he would have allowed the lawsuit to continue. He wrote that there is a “genuine question” of whether Lambert’s actions were gross negligence — in particular his use of a laptop while driving. It was Lambert’s first night working on patrol by himself, Jackson’s opinion says.

The split decision means the state Supreme Court is obligated to hear the case if there’s an appeal.

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