dissenting.
For plaintiff to prevail, there must be evidence either that husband turned on the cruise control or that the cruise control malfunctioned spontaneously, without having been turned on. In this case, there is no evidence that either of those events occurred, and the majority errs in reaching a contrary conclusion.
The evidence concerning whether husband turned on the cruise control comes solely from husband’s own testimony. Husband testified that he did not turn on the cruise control “either intentionally or unintentionally.” He later testified that “I don’t remember really,” and that he did not “know for sure.” The words “no,” “I don’t know,” and “I don’t remember” are not a basis for concluding that husband did turn on the cruise control. Those statements are evidence that he either did not do so, or that he simply could not remember. Nothing more. As a matter of logic and common sense, the existence of a fact may not be established by a declaration that the fact did not occur. Nor, as a matter of law, may a party satisfy his or her burden of proving that fact by asking the jury simply to disbelieve contrary testimony. Mallory v. Motor Vehicles Div., 20 Or App 380, 383, 531 P2d 758 (1975). The majority does not explain — and I do not understand — how a party may satisfy his or her burden by similarly asking the jury to rely on a witness who does not remember one way or the other.
*54The evidence concerning whether the cruise control spontaneously turned itself on is equally illusory. I have searched both the majority’s opinion and the record in vain for any testimony that that is what happened. At best, there is evidence from one or more of plaintiffs experts that the vehicle “could have” spontaneously accelerated without the cruise control having been turned on. Those experts, however, could not say whether that is, in fact, what happened. There is no testimony from any witness that the cruise control did spontaneously turn on, that it probably did so or that it was even likely that it did so.1 An expert’s speculation that a fact “could have” happened is not evidence that it did happen. In Wintersteen v. Semler, 197 Or 601, 250 P2d 420, 255 P2d 138 (1953), for example, the court reversed a jury verdict in favor of the plaintiff in a medical malpractice action, because the plaintiffs expert testified only that the plaintiffs injuries “could have” been caused by the defendant. Id. at 635-36. See also Feist v. Sears, Roebuck & Co., 267 Or 402, 407, 517 P2d 675 (1973); Howerton v. Pfaff, 246 Or 341, 346, 425 P2d 533 (1967). This case is not materially different.
Because there is no evidence from which the jury could have concluded that the cruise control was on at the time of plaintiffs accident, there is no basis for the jury’s *55verdict that plaintiffs injuries were caused by a malfunction in the cruise control. The majority errs in failing to reverse the trial court’s denial of defendant’s motion for a directed verdict. Accordingly, I respectfully dissent.
The majority disagrees, relying on the testimony of one of plaintiffs experts that “it was probable that the system malfunctioned in the manner [husband] described.” 136 Or App at 51. The problem with the majority’s reliance on that testimony is that the expert was not talking about the cruise control system spontaneously turning itself on when he made that statement. In fact, from the question put to the expert, it is clear that he was referring to the fact that, assuming the cruise control system already was on, the application of the brake failed to turn it off:
“Q. Now, you also made some observations about the brakes did you not?
“A. The right front brake.
“Q. And your observations were the brake — what you observed about the brake was consistent with somebody having attempted to push the brake on and made a sustained effort to brake, is that correct?
“A. It was consistent with that.
“Q. And as a scientist, you — or an engineer, you can’t say that something is absolute because you weren’t there; you can just say it’s consistent with that?
“A. That’s correct.
“Q. You did, however, conclude that it was probable that the system malfunctioned in the manner that [husband] described, didn’t you?
“A. Based on those observations.”