North Carolina Lawyers Weekly
After a police officer, while driving his cruiser, struck and killed a pedestrian, the officer is entitled to public official immunity because plaintiff’s evidence that the officer looked at his computer and twice moved out of his lane of traffic was insufficient to show gross negligence.
We reverse the trial court’s denial of the officer’s motion for summary judgment.
Facts
The defendant-police officer was responding to a domestic violence call at night. The stretch of road in question was straight, flat, and well lit, and the weather was clear. The officer was traveling at a rate of 58 miles per hour in a 45-m.p.h. zone, but he did not activate his blue lights or siren.
Plaintiff’s decedent crossed the road on foot. In the moments before the cruiser struck the pedestrian, the officer’s body camera showed that he looked at and touched his computer. The cruiser also moved outside its lane of travel twice. The cruiser was traveling at 53 mph when it struck and killed the pedestrian.
Public Official Immunity
Public official immunity serves to protect officials from individual liability for mere negligence.
Where the officer was responding to a domestic violence incident involving a firearm, his reason for driving at a speed above the speed limit was valid and lawful.
Although the officer’s vehicle slightly deviated from its lane of travel twice, there is no evidence he lost control of the vehicle. Less than two minutes elapsed from the time the officer was dispatched to the time of the accident.
Even if the officer violated police department policy by speeding without using his lights or sirens, the officer’s conduct did not rise to the level of gross negligence.
The officer’s actions were acts of discretion which may have been negligent but were not grossly negligent.
Reversed.
Dissent
(Jackson, J.): The question of whether the officer was grossly negligent should be decided by a jury.
Driving and watching a screen at the same time is dangerous. The officer’s body cam footage shows that he was driving with 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 he periodically glanced at his computer screen during this timeframe. The officer also committed at least two lane violations in the moments leading up to the accident, and the lane violations appear to coincide with the officer looking at his computer.
Five seconds before the collision, the officer placed his second hand on the steering wheel, but three seconds before the collision, he leaned distinctively towards his computer.
Enormous floodlights from a car dealership lit the area, and the dealership’s security footage shows the pedestrian crossing the road while using a cane. He successfully crossed five lanes of traffic before he was hit by the officer. The pedestrian stopped at the median and looked both ways before crossing the side of the road where he was hit by the officer.
From the dealership, body cam and cruiser camera footage, the officer did not appear to brake at all before hitting the pedestrian, nor did he appear to attempt to avoid hitting the pedestrian. In the body cam footage after the collision, the officer can be heard to say, “I looked over, and…” but then the audio cuts out. In a subsequent statement, the officer could not recall what his next words were after “and.”
As the majority notes, the officer was speeding without activating his blue lights and sirens, in violation of department policy. Finally, the accident occurred on the officer’s first night shift and his first day working alone.
There is a genuine issue of material fact regarding the officer’s gross negligence.
Estate of Graham v. Lambert (Lawyers Weekly No. 011-059-22, 22 pp.) (Fred Gore, J.) (Darren Jackson, J., dissenting) Appealed from Cumberland County Superior Court (Mary Ann Tally, J.) Kevin Vidunas for plaintiff; Steven Bader for defendants. 2022-NCCOA-161
