(dissenting). In our view, the Legislature did not contemplate that an accident occurring at ground level while one is walking, albeit elevated on stilts, should give rise to absolute liability under Labor Law § 240 (1). We, therefore, respectfully dissent. As the owner properly argues, Labor Law § 241 (6) is specifically targeted to the type of hazard encountered by plaintiff at the time of his accident and provides a more appropriate framework for his claim. The Court of Appeals has declined to impose section 240 (1) liability in an accident that is more appropriately evaluated under section 241 (6) (Rocovich v Consolidated Edison Co., 78 NY2d 509, 515).
The protection afforded under 12 NYCRR 23-5.22 was not intended to include a worker who chooses, while on stilts, to walk away from the work site to retrieve a clamp 20 to 30 feet away. As a practical matter, what device could be "so constructed, placed and operated as to give proper protection to a person so employed” (Labor Law § 240 [1])? None of the safety devices enumerated in the statute could reasonably have been used to protect plaintiff from tripping while he was walking on stilts. "The import of Labor Law § 240 (1) is undeniably salutary, requiring owners and contractors to provide proper protection to workers employed on a construction site [citations omitted]. However, not every hazard or danger encountered in a construction zone falls within the scope of Labor Law § 240 (1) as to render the owner or contractor liable for an injured worker’s damages [citation omitted]” (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490). (Appeal from Order of Supreme Court, Erie County, Doyle, J. — Labor Law.) Present— Denman, P. J., Green, Wesley, Balio and Boehm, JJ.