concurring.
I agree that there was sufficient evidence in this case to create a jury issue with respect to whether the foreign substance had been on the floor for a sufficient length of time that it should have been discovered and removed by Wal-Mart’s employees. However, I would go further and address the onerous burden of proof placed on retail customers by cases such as Jones v. Jarvis, Ky., 437 S.W.2d 189 (1969). See also Wiggins v. Scruggs, Ky., 442 S.W.2d 681 (1969); Cumberland College v. Gaines, Ky., 432 S.W.2d 650 (1968); Nelson v. Midwest Mortgage Co., Ky., 426 S.W.2d 149 (1968); Lane v. Cardwell, Ky., 306 S.W.2d 290 (1957); Kroger Grocery & Baking Co. v. Spillman, 279 Ky. 366, 130 S.W.2d 786 (1939). These cases hold that the customer must prove that (1) the foreign substance/objeet was caused to be on the floor by the actions of the proprietor or his employees, or (2) the substance/object had been on the floor for a sufficient length of time that it should have been discovered and removed or warned of by the proprietor or his employees. Thus, absent proof that the proprietor or his employees caused the substance/object to be on the floor, the injured customer is faced with the daunting burden of proving how long the substance/object had been on the floor before the accident and whether that was a sufficient length of time for notice and correction to have taken place.
Presumably, had the customer had personal knowledge of the presence of the substance/object before the accident, he would not have stepped on it. Absent his own knowledge or some other inferential proof, such as the melted Icee in this case, the customer must either produce a witness who saw the substance or object on the floor prior to accident or face either summary judgment or a directed verdict. The unlikelihood of success in that regard is attested to by the cumulative outcomes in the cases cited supra. Placing this virtually insurmountable burden of proof on the customer is inconsistent with the proposition that a proprietor of a place of business has a duty to keep his premises in a reasonably safe condition for normal use by his customers. Winn-Dixie Louisville, Inc. v. Smith, Ky., 372 S.W.2d 789 (1963); Layman v. Ben Snyder, Inc., Ky., 305 S.W.2d 319 (1957).
To balance the competing principles of notice versus duty, the issues of causation and notice should be treated not as elements of the customer’s case, but as affir*832mative defenses of the proprietor. The customer would retain the burden of proving that there was a foreign substance/object on the floor and that such was a substantial factor in causing his accident and injury. Such proof that the premises were unsafe would avoid a summary judgment or directed verdict and shift to the proprietor the burden of proving that his employees did not cause the substance/object to be on the floor and that it had been there for an insufficient length of time to have been discovered and removed or warned of by his employees. The jury instructions would be substantially as follows:
INSTRUCTION NO. 1
A. You will find for the Plaintiff if you are satisfied from the evidence that:
(1) On [date], he/she was injured when he/she fell as a result of slipping on a substance on the floor of the Defendant’s store;
AND
(2) By reason of the presence of the substance on the floor, the premises of the Defendant’s store were not in a reasonably safe condition for the use of the store’s customers, including the Plaintiff;
AND
(3) The presence of the substance on the floor of the Defendant’s store was a substantial factor in causing the Plaintiffs fall and injury.
B. Unless you so believe, you will find for the Defendant.
INSTRUCTION NO. 2
Even though you would otherwise find for the Plaintiff under Instruction No. 1, you will nevertheless find for the Defendant if you are satisfied from the evidence that:
(1) The substance which caused the Plaintiff to slip and fall was not placed or caused to be on the floor of the Defendant’s store by any act or omission of the Defendant or his/her employees;
AND
(2) The substance had not been on the floor for a sufficient length of time before the Plaintiff fell so that in the exercise of ordinary care, the Defendant or his/her employees should have discovered it and caused it to be removed or provided adequate warning of its presence.
INSTRUCTION NO. 3
(Comparative fault.)
LAMBERT, C.J., and GRAVES, J., join this concurring opinion.