I respectfully dissent and would affirm the judgment. I disagree with the majority’s conclusion that contributory negligence was not a defense to a violation of subdivision 6 of section 241 of the Labor Law as it existed on the date the accident herein occurred.
Plaintiff contends that defendant violated its duty pursuant to the provisions of subdivision 6 of section 241 of the Labor Law, resulting in absolute liability to plaintiff, and plaintiff’s motion for a directed verdict should have been granted.
Subdivision 6 of section 241 provides as follows:
"All contractors and owners and their agents, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: * * *
"6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The board may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work shall comply therewith.”
Subdivisions 1 through 6 of section 241 of the Labor Law impose a "nondelegable duty” on owners and contractors, irrespective of their control or supervision of the site (Allen v Cloutier Constr. Corp., 44 NY2d 290, 301). The provisions of subdivision 6 differ from the first five subdivisions which impose a duty to perform definite acts to protect the safety of workers. Subdivision 6, however, contains no such explicit and definite commands, but, rather, it requires that "[a]ll areas in which construction, excavation or demolition work is being performed * * * be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.” The holding that subdivision 6 imposes a "nondelegable duty” does not lead to the conclusion that the duty imposed therein results in absolute liability. The subdivision imposes a duty of reasonable care, whereas questions of absolute liability are determined without reference to such a standard. The apparent intent of *174the subdivision is to compel owners and general contractors to become more concerned with the safety practices because they would be exposed to liability without regard to control over the work. However, the language of subdivision 6 requiring reasonable and adequate protection requires only a duty to provide reasonable care to prevent injury. Absolute liability is most often applied only in connection with abnormally dangerous things and activities. Workers performing abnormally hazardous tasks have enjoyed the protection of absolute liability. A holding that subdivision 6 of section 241 of the Labor Law imposes absolute liability would ignore the fact that a substantial part of the work involved in the construction, demolition and excavation industries is not abnormally dangerous and that whatever dangers are normally involved in such work can be avoided by the exercise of reasonable care (Monroe v City of New York, 67 AD2d 89).
In the case of Allen v Cloutier Constr. Corp. (supra, p 300) the court held that section 241 of the Labor Law "fashions absolute liability upon an owner or contractor for a breach of the duties imposed by subdivisions 1 through 6 of section 241 irrespective of their control or supervision of the construction site”. However, there must be a breach of the duty "to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places” as required by subdivision 6, and apparently the jury here did not find any breach of duty by the defendant, and, absent such breach of duty, there was no liability on defendant’s part in favor of the plaintiff.
Plaintiff further contends that the trial court’s charge was erroneous, since the court charged that plaintiff’s contributory negligence was a defense, and if the jury found contributory negligence on the part of plaintiff, the verdict should be no cause for action.
Since the accident occurred prior to September 1, 1975, contributory negligence was a defense to an action for common-law negligence, and an action under section 200 of the Labor Law (Holgerson v South 45th St. Garage, 16 AD2d 255, affd 12 NY2d 1011). The issue of whether contributory negligence is a defense to a violation of subdivision 6 of section 241 is more difficult. Section 241 of the Labor Law was amended in 1969. Prior to the amendment, the section provided (L 1962, ch 450, §3): "All areas, buildings or structures in which construction, excavation or demolition work is being per*175formed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted by the owners, contractors, and subcontractors as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The board may make rules to carry into effect the provisions of this section.”
The only change in language between present subdivision 6 and the pre-1969 statute was the deletion of the words "buildings or structures” from the first sentence of the statute and the deletion of the words "owners, contractors and subcontractors” from that first sentence and inserting the words "owners and contractors and their agents” in the second sentence and stating that those owners, contractors, and their agents "shall comply” with the rules made under the statute.
It has been held that the pre-1969 statute required only "reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places” because its language was broad and general and not specific enough to "impose absolute liability” (Corbett v Brown, 32 AD2d 27). It has also been held that contributory negligence was a defense to a claimed violation of the pre-1969 section 241. (Lomonaco v McKinney & Son, 53 AD2d 982; Di Leo v Lincoln Center for Performing Arts, 38 AD2d 830; Corbett v Brown, supra.) Since former section 241 is identical to the present subdivision 6 of section 241 in terms of defining liability, the duty defined is the common-law obligation to provide a safe place to work, and the charge that contributory negligence was a defense to the alleged violation was proper.
I am not unmindful of this court’s statement in Frattura v Cozzolino Constr. Corp. (63 AD2d 1098, 1099), wherein it was stated: "While plaintiff’s contributory negligence was not a defense pursuant to subdivision 6 of section 241 of the Labor Law (Allen v Cloutier Constr. Corp., 44 NY2d 290), it was nevertheless submitted to the jury without objection.” However, in Frattura, the appeal was from a judgment in favor of plaintiff, and, thus, the jury must have concluded that plaintiff was free from contributory negligence. In addition, a review of the briefs filed on the appeal in Frattura raises no issue as to the court’s charge relative to contributory negligence. The only issue argued on contributory negligence was whether or not the testimony on plaintiff’s conduct contributed to his accident, and such fact question was determined by the jury in plaintiff’s favor. This court’s statement that con*176tributory negligence was not a defense to a cause of action pursuant to subdivision 6 of section 241 of the Labor Law was merely gratuitous and had no relevance to the issues raised on the appeal.
The judgment should be affirmed.
Greenblott, J. P., Sweeney and Kane, JJ., concur with Casey, J.; Staley, Jr., J., dissents and votes to affirm in a separate opinion.
Judgment modified, on the law, by reversing so much thereof as dismissed the cause of action in plaintiff’s complaint alleging a violation of subdivision 6 of section 241 of the Labor Law and dismissed the third-party complaint, and a new trial ordered on that cause of action and the third-party complaint, and, as so modified, affirmed, with costs to abide the event.