dissenting.
This Court has consistently held that “established precedent which itself is based upon a reasonable premise” should not be overturned unless “the need to change the law is compelling.” Corbin Motor Lodge v. Combs, Ky., 740 S.W.2d 944, 946 (1987). As this case presents no compelling reason to change existing slip and fall law in Kentucky, I respectfully dissent.
Until now, Kentucky slip and fall law has required that a retail customer “allege and prove that the defendant knew, or, by the exercise of ordinary care, could have known of the defect complained of.” Kroger Grocery & Baking Co. v. Spillman, 279 Ky. 366, 367, 130 S.W.2d 786, 787 (1939) (emphasis added). Under the notice rule, a customer must “introduce sufficient proof by either direct or circumstantial evidence that the [hazardous] condition existed a sufficient length of time prior to injury so that in the exercise of ordinary care, the possessor could have discovered it and either remedied it or given fair adequate warning of its existence .... ” Cumberland College v. Gaines, Ky., 432 S.W.2d 650, 652 (1968) (emphasis added).
In holding that proof of notice places a “daunting burden” on customers, the majority operates under the assumption that plaintiffs must prove that a proprietor “should have” discovered and removed or warned of the hazardous transient substance. Slip op. at 5 (emphasis added). But prior case law only requires plaintiffs to prove that a proprietor “could have” discovered and removed or warned of the hazardous transient substance. The verb “could” denotes possibility, while the verb “should” expresses expectation and obligation. It is easier to prove that a proprietor “could have” removed a dangerous substance than to prove that he “should have” removed that substance.
Prior to 1996, Kentucky cases consistently required plaintiffs to prove the proprietor “could have” rectified the hazard*438ous situation, either through removal or warning. In 1996, a federal district court transmuted “could” to the more familiar federal standard of “should.” Stump v. Wal-Mart Stores, Inc., 946 F.Supp. 492, 494 (E.D.Ky.1996). Shortly thereafter, in Smith v. Wal-Mart Stores, Inc., Ky., 6 S.W.3d 829 (1999), this Court held that evidence of a melting Icee created a jury question as to whether Wal-Mart “should have” discovered and remedied the Icee spill. Id. at 831. However, application of the “should have” standard was not dispos-itive or discussed.
The majority opinion applies the “should have discovered” standard in interpreting Kentucky’s current proof of notice requirement. Yet, none of the cases cited by the majority employ the “should have discovered” standard. See Jones v. Jarvis, Ky., 437 S.W.2d 189 (1969); Wiggins v. Scruggs, Ky., 442 S.W.2d 581 (1969); Cumberland College v. Gaines, Ky., 432 S.W.2d 650 (1968); Lane v. Cardwell, Ky., 306 S.W.2d 290 (1957); and Kroger v. Spillman, 279 Ky. 366, 130 S.W.2d 786 (1939). These cases only require plaintiffs to prove that the proprietor “could have” discovered and removed or warned of the transient substance. The majority opinion is premised on the erroneous assumption that plaintiffs must meet a higher burden of proof than actually exists.
Applying the proper burden of proof, current Kentucky slip and fall law does not place an undue burden on plaintiffs, as proof of notice can be established by circumstantial evidence. This Court has only dismissed slip and fall cases where plaintiffs have utterly failed to produce circumstantial evidence. This Court recognized long ago that if a slip and fall plaintiff completely lacks any evidence as to how long a transient substance was on the floor, then submission to the jury is impermissible as it gives “permission to the jury to enter the realm of speculation.” Kroger v. Spillman, 130 S.W.2d at 788. The majority’s opinion encourages this prohibited practice of jury speculation. Steely v. Hancock, Ky., 340 S.W.2d 467 (1960).
Wal-Mart identified 84 employees who were on the clock when Lanier fell. Of those, 20 employees were “believed to have a higher probability of being in the grocery area of the store” where Lanier fell. (Record, Vol. II. at 222). Wal-Mart also identified five employees who came to La-nier’s assistance after her fall. But Lanier took no depositions and failed to present any evidence that Wal-Mart could have removed the spill. On such a scant record, a jury would be forced to engage in speculation.
Under the majority’s new shifting the burden of proof standard, a plaintiff need only assert that he slipped and fell on a transient substance and was injured as a result thereof. This minimal requirement eviscerates plaintiffs’ obligation to prove breach of duty under negligence law. In Jones v. Jarvis, Ky., 437 S.W.2d 189 (1969), this Court rejected eliminating proof of notice, holding that such elimination would essentially create strict liability.
Here, the majority explains that, in shifting the burden of proof, it is not endorsing strict liability. In practice, that is a distinction without a difference, and the majority’s revision of the burden of proof will, by indiscriminately flinging open the gates to trial, substantially affect not only the Wal-Marts of the world, but also every “Mom and Pop” business in the Commonwealth. Plaintiffs do not have to prove any negligence whatsoever to avoid summary dismissal and get before a jury. This result not only conflicts with basic principles of negligence law, but also with the common law principle that a proprietor is not an insurer for a customer’s safety. Lane v. Cardwell, Ky., 306 S.W.2d at 291; *439Bosler v. Steiden Stores, Inc., 297 Ky. 17, 22, 178 S.W.2d 889, 841 (1944); Kroger v. Spillman, 180 S.W.2d at 787.
For the foregoing reasons, I would affirm the opinion of the Court of Appeals.
KELLER and WINTERSHEIMER, JJ., join this dissenting opinion.