Opinion:Cook v. McGraw Davisson Stewart, 2021 OK CIV APP 32
Subject matter:Wire fraud; Evidence. 
Date Decided:April 5, 2021; Mandate Issued: July 21, 2021
Trial Court:District Court of Tulsa County; Judge LaFortune
Route to this Court:Appeal from summary judgment granted in the trial court. 
Facts:Cook received an email appearing to come from his real estate broker instructing him to wire funds to close on the purchase of a property. Cook followed the wiring instructions and wired $53,884.60. The email was not from Cook’s broker and fraudsters absconded with Cook’s funds. Cook brought suit against his broker claiming that his broker’s email had been hacked, that his broker had breached a duty to protect Cook’s personal and financial information, and that his broker was responsible for Cook’s loss of funds. However, Cook did no investigation to confirm whether the broker’s email system (which was provided by Google) was in fact hacked and Cook did not retain an expert to evaluate the source of the hacking or whether or not the broker’s security measures met industry standards. For these reasons, the broker moved for and was granted summary judgment. Cook appealed. 
Standard of Review:De novo, considering the evidence and inferences drawn therefrom in the list most favorable to the non-moving party. 
Analysis:“Even if we assume Cook’s injury was foreseeable and gave rise to a duty to protect him from this type of harm, Cook’s claims fail because he did not present evidence sufficient to demonstrate a question of fact on other necessary elements of a negligence claim.” Cook admitted that he could not present evidence that it was the broker’s email that had been hacked, as opposed to his own. Cook’s own testimony was that he expected the broker to look into the matter. However, it is Cook and not the broker that bears the burden of proof for trial. “Absent evidence that the broker’s email had been hacked, trial on Cook’s negligence claim would be a waste of judicial resources.” Also, Cook’s evidence does not give rise to a reasonable inference that the broker breached their duty of care. In addition, summary judgment was proper for the lack of expert testimony in support of Cook’s claims. 
Vote:Hixon, P.J. (author), Fischer, V.C.J., and Rapp, J., concur. 
Other: Certiorari was not sought.