Claimant Spyros Kalofonos (Kalofonos) standing on a platform beyond the vertical supports — an area known to him to be dangerous — fell backwards and sustained serious injuries when he struck the pavement below. The Court of Claims (115 Misc 2d 692) and now the majority of this court cast the State in absolute liability for the accident. In my view, this determination rests upon an erroneous construction of section 240 of the Labor Law. Therefore, I must dissent.
The absence of safety rails cannot be the basis for absolute liability because the statute itself provides that safety rails are required only on scaffolds “more than twenty feet from the ground” (Labor Law, § 240, subd 2) and the scaffold in question was concededly less than 20 feet in height (Ryan v Cenci, 95 AD2d 963, 964). While rule 23-5.1 of the Industrial Code (12 NYCRR 23-5.1 [j] [1]) states that scaffolds seven feet or more should have their open sides equipped with safety railings, this standard may not be employed in a section 240 of the Labor Law case.
Unlike subdivision 6 of section 241, section 240 is a “self-executing statute”, containing specific standards which do not defer to the rule-making authority of the Board of Standards and Appeals (Long v Forest-Fehlhaber, 55 NY2d 154, 160; see, also, Bland v Manocherian, 93 AD2d 689, 693). Had the Legislature intended to mandate safety rails on scaffolds of less than 20 feet or less in height, it would have done so (Bland v Manocherian, supra, p 692). The failure to provide a safety rail, therefore, “would not, standing alone, establish subdivision 1 of section 240 liability since such an alleged dereliction would establish nothing more than a violation of the Industrial Code which, at most, is some evidence of negligence” (Bland v Manocherian, supra, p 693; see, also, Monroe v City of New York, 67 AD2d 89).
Use of the Industrial Code as a standard under section 240 of the Labor Law amounts to an impermissible end run around Long v Forest-Fehlhaber (supra), which holds that in an action under subdivision 6 of section 241 of the Labor Law, comparative fault is a defense to a violation of an Industrial Code rule. Since negligence principles are foreign to a section 240 action (e.g., Crawford v Leimzider, 100 AD2d 568, 569; Rea v Elia Bldg. Co., 79 AD2d 1102), I cannot subscribe to the majority’s thesis of equating “negligence” with “absolute liability”. To be sure, a failure to comply with an Industrial Code provision is “ ‘some evidence * * * on the question of defendant’s negligence’ * * * [but] violation of the Industrial Code does not impute absolute liability” (Bland v Manocherian, supra, p 693). Whether the *82duty of care mandated by statute has been breached perforce depends upon the facts of the peculiar case, but, when strict liability is legislatively imposed, I submit that the standard of care must have its roots either in the statute itself or in decisional law (see Prosser and Keeton, Torts [5th ed], § 36, p 227; Restatement, Torts 2d, § 285, Illustration 4; § 282, Comment f; 1A Warren, Negligence [2d ed], Statutes and Ordinances, §§ 7.06, 9.02; cf. Major v Waverly & Ogden, 7 NY2d 332; Crawford v Leimzider, supra, p 569; La France v Niagara Mohawk Power Corp., 89 AD2d 757, app dsmd 58 NY2d 747).
I also have difficulty in perceiving how the failure to supply a safety rail was the proximate cause of the accident (see Mack v Altmans Stage Light. Co., 98 AD2d 468; La France v Niagara Mohawk Power Corp., supra). At some point during the performance of his work, rather than simply moving the truck, Kalofonos climbed over the vertical support at the end of the scaffold and chose to work on the very edge of the platform, outside of the vertical supports, where he fell. Obviously, even if there had been a horizontal safety rail extending from each vertical support, Kalofonos’ fall would not have been prevented since he was, by his own volition, outside of the vertical supports (see Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361 [Simons, J. P.], app dsmd 58 NY2d 824).
Nor is there any evidentiary support for the assertion that other “devices”, such as safety nets, harnesses or the like, were needed to supply Kalofonos with “proper protection”. There is no testimony that such devices were necessary or were utilized by others in the industry. In addition, although rope was available to fashion a safety line, the State cannot be faulted for Kalofonos’ failure to use it (Smith v Hooker Chems. & Plastics Corp., supra). More important, “[h]ere, there was no failure of any device required by subdivision 1 of section 240”; hence, the State is entitled to dismissal of that cause of action (La France v Niagara Mohawk Power Corp., 89 AD2d 757, 758, supra).
The Court of Claims also predicated liability on subdivision 6 of section 241 of the Labor Law. While, contrary to the State’s argument, that section is not limited to building construction accidents (e.g., Maher v Atlas Tr. Mix Co., 104 AD2d 591; Copertino v Ward, 100 AD2d 565; Celestine v City of New York, 86 AD2d 592, 593, affd 59 NY2d 938; Page v State of New York, 73 AD2d 479, affd 56 NY2d 604), and the proof could support the imposition of liability and proximate cause under such a theory (La France v Niagara Mohawk Power Corp., 89 AD2d 757, 758, supra; Lagzdins v United Welfare Fund, 77 AD2d 585), I believe that a new trial is in order.
*83As indicated, in an action based on subdivision 6 of section 241 of the Labor Law, comparative fault is a defense (Long v ForestFehlhaber, supra; Monroe v City of New York, supra) and there is evidence in this record tending to establish negligence on Kalofonos’ part. Since Kalofonos was permitted to pursue at trial a claim pursuant to subdivision 6 of section 241 of the Labor Law, which was at variance with his bill of particulars, the State should have been permitted to amend its answer to add an affirmative defense of comparative fault (CPLR 3025, subd [b]; see, e.g., Fahey v County of Ontario, 44 NY2d 934; Murray v City of New York, 43 NY2d 400, 405). Contrary to the holding of the Court of Claims, the amendment could not have prejudiced the claimants as, irrespective of the statutory theory being pursued, the facts regarding the accident were the same. On the other hand, the prejudice to the State is manifest as it was precluded from fully presenting its defense (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757).
For these reasons, the judgment appealed from should be reversed and a new trial granted.
Lazer, O’Connor and Niehoff, JJ., concur with Mollen, P. J.; Titone, J., dissents and votes to reverse the judgment appealed from and grant a new trial, with an opinion.
Judgment of the Court of Claims, entered October 5, 1982, affirmed, with costs.