Generally, as to private property, other jurisdictions, no matter how soon after the transfer of ownership the accident occurs, have adhered to the rule that "The common-law rule of caveat emptor is applied strictly to a purchaser of real property. [Citations.] Absent a showing of fraud or deceit, the seller of realty is not liable to the purchaser or his tenants for negligence." ( Sosebee v. Hiott (1981) 157 Ga. App. 768 [ 278 S.E.2d 700, 702] [fire four days after title passed]; Martin v. 1727 Corp. (1983) 120 Ill. App.3d 733 [ 458 N.E.2d 990, 994] [injury occurred 29 days after new owner had possession and control; refused to extend liability until vendee can remedy known defect]; Great Atlantic Pac. Tea Co., Inc. v. Wilson (Ind. App. 1980) 408 N.E.2d 144, 148 [11 A.L.R.4th 569] [injury 45 days after lease terminated; liability ordinarily depends on the power to prevent injury; possession therefore is determinative]; Higgenbottom v. Noreen (9th Cir. 1978) 586 F.2d 719 [finding instruction based on §§ 352 and 353 properly delineated Oregon law]; Thone v. Nicholson (1978) 84 Mich. App. 538 [ 269 N.W.2d 665, 667-668] [reciting general rule that liability rests on one in control and possession].) The one state which has at times taken a different approach is New York where a distinction has been drawn "between mere negligent maintenance of property and affirmative acts of negligence in the actual creation of a nuisance or dangerous condition. [Citations.]
Summary judgment will be granted only if the pleadings, affidavits and depositions on file reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. ( Kroll v. Sugar Supply Corp. (1983), 116 Ill. App.3d 969, 452 N.E.2d 649.) Plaintiffs are not required to prove their case at summary judgment stage; however, they are under a duty to present a factual basis which would arguably entitle them to judgment in their favor. ( Martin v. 1727 Corp. (1983), 120 Ill. App.3d 733, 458 N.E.2d 990.) Facts which are unrelated to the essential elements of a plaintiff's cause of action are immaterial, and no matter how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment. ( Equity General Insurance Co. v. Patis (1983), 119 Ill. App.3d 232, 456 N.E.2d 348.)
Furthermore, petitioner was merely required, in response to the summary judgment motion, to present some evidence to support the required elements of her petition, and here she failed to present any evidence. (See Martin v. 1727 Corp. (1983), 120 Ill. App.3d 733, 458 N.E.2d 990.) The respondent concludes that, under such circumstances, the trial court properly granted summary judgment in favor of respondent.
In re Estate of Kunz, 7 Ill. App. 3d 760, 763 (1972); 47th State Currency Exchange, Inc. v. B. Coleman Corp., 56 Ill. App. 3d 229, 232 (1977). Nevertheless, "in the interest of doing substantial justice between the litigants and although it is not the duty of this court to search the record to determine what the real issues are or to seek material for the disposition of such issues" ( Martin v. 1727 Corp., 120 Ill. App. 3d 733, 740 (1983)), we have done so in this case. In the matter at hand, no matter how Magna chose to frame its claim, i.e., negligence or breach of contract, Magna's cause of action sounded in legal malpractice.
The plaintiffs, to survive a motion for summary judgment by Crane, had a duty to present a factual basis upon which a judgment could have been entered in their favor. See Cole Taylor Bank v. Corrigan (1992), 230 Ill. App.3d 122, 595 N.E.2d 177; Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App.3d 864, 529 N.E.2d 40; Martin v. 1727 Corp. (1983), 120 Ill. App.3d 733, 458 N.E.2d 990. To this end plaintiffs rely on one case: Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill.2d 482, 505 N.E.2d 314. That case recognized an exception to the at-will employment rule in Illinois.
The party opposing the motion need not prove her case to defeat the motion; however, she must present some factual basis which would arguably entitle her to judgment. ( Yusuf v. Village of Villa Park (1983), 120 Ill. App.3d 533, 458 N.E.2d 575; Martin v. 1727 Corp. (1983), 120 Ill. App.3d 733, 458 N.E.2d 990.) Failure of the party opposing the motion to file counteraffidavits does not mean that the motion is to be automatically granted. Rather, it means that all the facts, as distinguished from conclusions, in the movant's affidavits are uncontradicted and must be accepted as true for purposes of the motion.
On defendant's motion for summary judgment a plaintiff is not required to establish his case as he would at trial, but he must present some factual basis that would arguably entitle him to a judgment. ( Fuentes, 174 Ill. App.3d at 866; Martin v. 1727 Corp. (1983), 120 Ill. App.3d 733, 737.) These fundamental principles guide our inquiry.
Thus, the vendor's liability may not be predicated on a defective condition of which the vendee was aware. See Martin v. 1727 Corp. (1983), 120 Ill. App.3d 733, 739, 458 N.E.2d 990. Where signs of a problem are obvious and observed by the prospective purchaser, the signs put the prospective purchaser on notice of the problem as much as any disclosure by the seller.
At the summary judgment stage, a plaintiff is not required to prove its case but rather merely has the duty to present a factual basis which would arguably entitle it to judgment in its favor. ( Martin v. 1727 Corp. (1983), 120 Ill. App.3d 733, 737, 458 N.E.2d 990.) A triable issue exists if fair-minded persons could draw more than one conclusion or inference from the facts, including one unfavorable to the moving party.
We have frequently held that although the opponent of a summary judgment motion does not have to prove his case, he must present some facts that would arguably entitle him to judgment. N.W. v. Amalgamated Trust Savings Bank (1990), 196 Ill. App.3d 1066, 1075, 554 N.E.2d 629; Martin v. 1727 Corp. (1983), 120 Ill. App.3d 733, 737, 458 N.E.2d 990. • 3-5 In a negligence action, there can be no recovery by a plaintiff as a matter of law unless the plaintiff presents sufficient facts to establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach.