This is the second appeal of this case. On the first appeal, Peltier v. Dahlke, 248 Or. 512, 434 P.2d 457 (1968), we reversed a judgment for plaintiff and remanded with directions to enter a judgment of involuntary nonsuit. We held that plaintiff had failed to prove her charge of negligence.
Absent such argument and evidence tying the damage to the fire itself or the PFD's suppression efforts, the Court would be impermissibly forced to speculate. Cf. Griffin v. K.E. McKay's Market of Coos Bay, Inc., 125 Or.App. 448, 450-52, 865 P.2d 1320 (1993) (speculation and guesswork are not permissible means by which a jury may find negligence); see also Peltier v. Dahlke, 248 Or. 512, 518, 434 P.2d 457 (1967) (“[t]he mere fact that plaintiff was injured is not sufficient” to impose liability); Sims v. Dixon, 224 Or. 45, 48, 355 P.2d 478 (1960) (“[i]t is well established that . . . [t]he proof of the material issue [of causation] must have the quality of reasonable probability”).
Farmers Insurance Exch. v. Colton, 264 Or 210, 217, 504 P2d 1041 (1972). Although negligence will not be presumed, Peltier v. Dahlke, 248 Or 512, 518, 434 P2d 457 (1967), the lack of evidence of negligence would not necessarily entitle State Farm to summary judgment if plaintiff could provide the necessary basis for application of the doctrine of res ipsa loquitur, which allows a plaintiff to establish negligence inferentially even though "the specific negligent conduct may not be identified since there is no proof to establish it." Kaufman v. Fisher, 230 Or 626, 636, 371 P2d 948 (1962).