In this declaratory judgment action, plaintiff, Auto-Owners Insurance Company, appeals as of right a circuit court opinion and order denying its motion for summary disposition and granting summary disposition in favor of defendant Joseph Derry. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
This case arose after Derry was injured while working on a lawn crew of defendant All Star Lawn Specialists Plus, Inc. (All Star). At the time of his injury, Derry was performing a “fall cleanup” at an apartment complex and was using a leaf vacuum machine to suck up leaves into a truck. He sustained injuries after the leaf vacuum machine tipped over, causing its boom to strike him. It is undisputed that at the time of the incident, the mechanism attaching the leaf vacuum machine to the truck was unlatched or unlocked, and that if the latch had been “locked down,” the machine would not have tipped over.
Auto-Owners subsequently moved for summary disposition under MCR 2.116(C)(10), arguing that, as a matter of law, Derry was an “employee” of All Star at the time of his injuries as defined under § 161(1) of the Worker’s Disability Compensation Act (WDCA), MCL 418.161(1), and thus, the Auto-Owners workers’ compensation insurance policy was the appropriate policy to provide coverage for Derry’s injuries. Derry argued that he was not an employee of All Star at the time of the injuries, but was an “independent contractor,” and, thus, the workers’ compensation policy did not apply to provide coverage for his injuries. Derry argued instead that the general liability insurance policy provides coverage for his negligence claim against All Star and the commercial automobile policy provides coverage for his claim for personal injury protection benefits under Michigan’s no-fault vehicle insurance act. The trial court, in denying Auto-Owners’ motion for summary disposition and granting summary disposition in favor of Derry, held that Derry was not an employee under the workers’ compensation act, MCL 418.161(1), or
“This Court reviews a trial court’s summary disposition decision de novo.” Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772 NW2d 801 (2009). “A motion under MCE 2.116(0(10) tests the factual sufficiency of a complaint.” Id. “The court must consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion.” Id. “The motion is properly granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. at 29-30. The trial court may not make findings of fact or weigh credibility in deciding a motion for summary disposition. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).
Further, the interpretation of a statute presents a question of law subject to review de novo by this Court. Reed v Yackell, 473 Mich 520, 528; 703 NW2d 1 (2005) (opinion by TAYLOR, C.J.), citing Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 569; 592 NW2d 360 (1999). Pertinent here, is whether an individual is an “employee” as statutorily defined in the workers’ compensation act, which presents a question of law. McCaul v Modern Tile & Carpet, Inc, 248 Mich App 610, 615; 640
An insurance policy is much the same as any other contract. It is an agreement between the parties in which a court will determine what the agreement was and effectuate the intent of the parties. Accordingly, the court must look at the contract as a whole and give meaning to all terms. Further, any clause in an insurance policy is valid as long as it is clear, unambiguous and not in contravention of public policy. This Court cannot create ambiguity where none exists.
Exclusionary clauses in insurance policies are strictly construed in favor of the insured. However, coverage under a policy is lost if any exclusion within the policy applies to an insured’s particular claims. Clear and specific exclusions must be given effect. It is impossible to hold an insurance company liable for a risk it did not assume. [Churchman, 440 Mich at 566-567 (quotation marks and citations omitted).]
Accordingly, the “ [interpretation of an insurance policy ultimately requires a two-step inquiry: first, a determi
I. WORKERS’ COMPENSATION POLICY
Auto-Owners first claims that the trial court erred by concluding that its workers’ compensation policy did not provide coverage for Derry’s injuries. The policy at issue provides insurance for accidental bodily injury when benefits are required under the workers’ compensation law. “Michigan’s Worker’s Disability Compensation Act requires that employers provide compensation to employees for injuries suffered in the course of the employee’s employment, regardless of who is at fault.” Hoste, 459 Mich at 570, citing MCL 418.301. The threshold question, therefore, in determining whether an individual is entitled to coverage under the workers’ compensation act is whether the individual is an “employee” as statutorily defined by the act. Reed, 473 Mich at 530 (opinion by TAYLOR, C.J.).
Section 161(1) of the workers’ compensation act, MCL 418.161(1), specifically defines who is an “employee” under the act. Hoste, 459 Mich at 570, 572-573. The subsections pertinent to this case define an employee as:
(,l) Every person in the service of another, under any contract of hire, express or implied ....
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(n) Every person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury, if the person in relation to this service does not maintain a separate business, does not*525 hold himself or herself out to and render service to the public, and is not an employer subject to this act.
Sections 161(1)(Z) and (n) “must be read together as separate and necessary qualifications in establishing employee status.” Hoste, 459 Mich at 571, 573; see also Reed, 473 Mich at 530 (opinion by TAYLOR, C.J.). Accordingly, first it must be determined whether Derry was an employee at the time of his injury under § 161(1)(Z). If so, then it must be determined whether he was an employee under § 161(l)(n). Reed, 473 Mich at 530 (opinion by TAYLOR, C.J.); Hoste, 459 Mich at 573.
The parties do not dispute that Derry was an “employee” as defined under § 161(1)(Z), which “involves an inquiry regarding whether [an individual] was an employee under a ‘contract of hire.’ ” Hoste, 459 Mich at 573; see also Reed, 473 Mich at 530-531 (opinion by TAYLOR, C.J.). All Star paid him an $11 hourly wage with overtime, which was clearly intended as “real and substantial” consideration, especially in light of the fact that he worked 24 to 40 hours a week during the lawn maintenance season. Blanzy v Brigadier Gen Contractors, Inc, 240 Mich App 632, 640-641; 613 NW2d 391 (2000), citing Hoste, 459 Mich at 576; see Reed, 473 Mich at 532 (opinion by TAYLOR, C.J.), quoting Hoste, 459 Mich at 576 (“[T]he linchpin to determining whether a contract is ‘of hire’ is whether the compensation paid for the service rendered was not merely a gratuity but, rather, ‘intended as wages, i.e., real, palpable and substantial consideration^]’ ”)
However, entitlement to workers’ compensation benefits under the act is further dependent on satisfying the definition of an employee under § 161(l)(n), which “sets forth three criteria for determining whether a person performing services for an employer qualifies as what is commonly called an ‘independent contractor’
In Amerisure, id. at 574, this Court opined as follows in interpreting the statute:
The Legislature is presumed to have intended the meaning it plainly expressed. Frasier v Model Coverall Service, Inc, 182 Mich App 741, 744; 453 NW2d 301 (1990). If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Id. The plain and ordinary meaning of the language of the statute involved in this case is clear. The latter portion of the statute is drafted in the negative, employing the word “not” before each provision: “provided the person in relation to this service does not maintain a separate business, does not hold himself or herself out to and render service to the public and is not an employer*527 subject to this act.” By so employing the word “not,” the Legislature intended that once one of these three provisions occurs, the individual is not an employee. Thus, each provision must be satisfied for an individual to be an employee. If the Legislature had intended otherwise, it would have drafted the statute as plaintiff suggests.
Although we are bound by the Amerisure Court’s interpretation of the statute, MCR 7.215(J)(1), we respectfully disagree with that interpretation and follow it only because we are obligated to do so. MCR 7.215(J)(2). But for the requirement that we follow the prior decision, we would reach a different conclusion.
While the wording of the statute in the negative does render it more difficult to properly read, we nonetheless conclude that the Amerisure Court focused on the wrong word in analyzing the statute. Instead of focusing on the word “not,” the panel should have focused on the word “and.” That is, the Amerisure Court erroneously concluded that a person is not an employee if any of the three criteria are met. But that overlooks the Legislature’s use of the word “and” in linking the three criteria and the purpose behind the provision in the first place. The Legislature was endeavoring to define the difference between an “employee” (who is covered under the act) and an “independent contractor” (who is not covered under the act). So the Legislature wrote a definition of “employee” in the negative, saying essentially that an “employee” is a person who, with respect to the service provided to the employer, is not an independent contractor. It then lists the three criteria to determine if a person is an independent contractor, all of which must be met (hence the use of the word “and” in the listing).
Some guidance in reaching this interpretation is provided in the plurality opinion of Chief Justice TAYLOR in Reed. In Reed, Chief Justice TAYLOR restates the
But unfortunately, it is only a suggestion. The opinion of Chief Justice TAYLOR in Reed was only a plurality opinion. And it focused on the requirement that the separate business be the same service as that provided to the employer. That is, for example, a person employed as a roofer can only be considered an independent contractor if his or her own business is also a roofing business. As Chief Justice TAYLOR stated, “Thus, for example, if the service that the person performs for the employer is roofing, to be an independent contractor and, thus, be ineligible for worker’s compensation, the person must maintain a separate roofing business, which roofing business he holds himself or herself out to the public as performing.” Reed, 473 Mich at 537 (opinion by TAYLOR, C.J.). Interestingly, while the plurality opinion in Reed ignored the third requirement, that the independent contractor must also be an employer under the workers’ compensation act, the example of an independent contractor that it gave indicated that both of the first two requirements must be met, not just one of them. Nonetheless, this supports
Moreover, we believe that this comports with the Legislature’s intent behind this provision. In our view, the Legislature, despite somewhat cumbersome drafting, was attempting to accomplish three things in § 161(l)(n): (1) to make it clear that a person employing an independent contractor does not have to provide workers’ compensation coverage to that independent contractor, (2) to provide a definition that distinguishes between an employee and an independent contractor so that, either by accident or subterfuge, a person who should be covered as an employee under the act is not classified as an independent contractor and escapes coverage, and (3) to make it clear that a person can be an employee of one employer, while maintaining their own side business as an independent contractor. As the plurality opinion in Reed makes clear, the third purpose is addressed by examining whether the person is providing the same service as the employer or a different service.
Following the Amerisure interpretation, if only one of the three conditions set forth in § 161(l)(n) had to be met in order for a person to be classified as an independent contractor, it is easy to imagine any number of situations where a person who is truly an employee would suddenly be reclassified as an independent contractor. For example, a secretary who otherwise meets the definition of an employee would suddenly become an independent contractor, and no longer covered by workers’ compensation, when the secretary runs an ad offering typing services that the secretary performs on evenings and weekends because he or she is holding his or her services out to the public (and it is the same service that he or she provides
But to follow the suggestion in the plurality opinion in Reed would achieve the purpose of the Legislature in writing this section. In each of the above examples, the individuals would not lose their status as employees (and coverage under the workers’ compensation act) because, although they hold themselves out to render a service to the public and even arguably maintain their own separate business (depending on how “business” is defined), they are not employers under the act. And, therefore, they are not independent contractors. But it would also achieve the purpose of not requiring an employer to provide workers’ compensation coverage for the true independent contractor, even where the independent contractor provides the same service. For example, in the case at bar, had All Star found itself in a position of having more work than it could handle, but wanted to retain a subcontractor rather than hire additional employees, it could retain another lawn care business (i.e., one that had its own business, held itself out as offering service to the public, and was an employer under the act) and not have to worry about providing workers’ compensation coverage.
But what would not be possible under the suggestion in Reed would be for an employer to take a person who
Turning to the case at bar, it is not disputed that Derry performed lawn mowing, snow removal, and leaf clearing services for both All Star and for his neighbors. During the time Derry worked for All Star, he provided lawn maintenance services, i.e., mowing, blowing, edging, trimming, and leaf removal, as well as occasional snow removal services for commercial properties, such as apartment complexes and industrial buildings. During that same period, Derry also shoveled snow, mowed lawns, and raked leaves for individuals in his neighborhood, work he obtained through word of mouth and personal solicitation by going door to door in his subdivision. The lawn maintenance and snow removal work performed by Derry for All Star, which involved commercial properties, was clearly on a much larger scale than the services performed for his neighbors. However, it is undisputed that Derry performed essentially the
We agree with the trial court that the undisputed evidence establishes that Derry held himself out as someone who performed lawn maintenance and snow removal work to individuals in his neighborhood by going door to door and by word of mouth. The facts, although undisputed, present a close question because Derry only performed such services for his neighbors on an occasional basis and did not advertise to the public at large or solicit such work from any individuals beyond his subdivision. We conclude, under the specific circumstances of this case, however, that Derry’s holding himself out to individuals in his neighborhood constitutes holding himself out to and rending service “to the public.”
The workers’ compensation act does not specifically define the term “public,” and, thus, it is appropriate to consider the term “public” as it is ordinarily defined. Martin v Dep’t of Corrections, 140 Mich App 323, 330; 364 NW2d 322 (1985), aff'd 424 Mich 553 (1986), citing People v Powell, 280 Mich 699, 703; 274 NW 372 (1937). In Powell, our Supreme Court defined the term “public” to mean “all those who have occasion to purchase, within the limits of the defendant’s capacity or ability to furnish it.” Powell, 280 Mich at 707. Within this meaning, “the
But, again, we reiterate that we only reach this conclusion because we are obligated to follow the erroneous Amerisure opinion. MCR 7.215(J). Were we free to do so, we would hold that § 161(l)(n) requires that, for a person to be classified as an independent contractor rather than an employee, all three of the factors listed in the statute must be met, rather than just one. And, while Derry does meet at least one of the factors, holding his service out to the public, he also fails to meet at least one of the factors, he is not an employer under the compensation act. Therefore, while we are constrained to conclude that Derry is an independent contractor under the Amerisure interpretation, if we were free to apply our own interpretation of the statute, we would conclude that Derry is an employee of All Star because all three requirements under the statute to be considered an independent contractor were not met.
II. GENERAL LIABILITY POLICY
We next consider whether Auto-Owners’ general liability policy provides coverage for Derry’s negligence claim against All Star. It is not disputed that Derry, who suffered accidental bodily injury, triggered potential coverage un
To negate coverage under its general liability policy, Auto-Owners first relies on the workers’ compensation exclusion contained in its general liability policy, which excludes coverage for “[a]ny obligation of the insured under a workers compensation. .. law.” Derry, however, was not an employee as defined in the workers’ compensation act, MCL 418.161(l)(n), and, thus, is not entitled to workers’ compensation benefits for his injuries. Accordingly, the workers’ compensation exclusion, which plainly and unambiguously bars coverage for injury compensable under workers’ compensation laws, does not apply to preclude coverage under the policy. See Nat’l Ben Franklin Ins Co v Harris, 161 Mich App 86, 90-91; 409 NW2d 733 (1987). We reach this conclusion, however, only because, as discussed above, we are required to follow the Amerisure interpretation of § 161(l)(n). If we were free to apply our interpretation of the statute, then we would hold that Derry was an employee and the workers’ compensation exclusion would apply in this case.
“The economic-reality test considers four basic factors: (1) control of a worker’s duties, (2) payment of wages, (3) right to hire, fire, and discipline, and (4) performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal.” Mantei v
“First, what liability, if any, does the employer incur in the event of the termination of the relationship at will?
“Second, is the work being performed an integral part of the employer’s business which contributes to the accomplishment of a common objective?
“Third, is the position or job of such a nature that the employee primarily depends upon the emolument for payment of his living expense?
“Fourth, does the employee furnish his own equipment and materials?
“Fifth, does the individual seeking employment hold himself out to the public as one ready and able to perform tasks of a given nature?
“Sixth, is the work or the undertaking in question customarily performed by an individual as an independent contractor?
“Seventh, control, although abandoned as an exclusive criterion upon which the relationship can be determined, is a factor to be considered along with payment of wages, maintenance of discipline and the right to engage or discharge employees.
“Eighth, weight should be given to those factors which will most favorably effectuate the objectives of the statute.” [Hoste, 459 Mich at 568 n 6, quoting McKissic v Bodine, 42 Mich App 203, 208-209; 201 NW2d 333 (1972).]
The economic reality test requires examination of the totality of the circumstances surrounding the work performed. Mantei, 256 Mich App at 79.
Considering the testimony and affidavits presented relevant to Derry’s employment status, in light of the factors set forth under the economic reality test, we find
Some evidence pointed to Derry being an employee under the economic reality test. For example, as a member of All Star’s lawn crew, Derry performed an integral part of All Star’s business and worked directly with All Star’s owners toward the accomplishment of a single goal, i.e., completing the lawn maintenance jobs for properties under contract with All Star. All Star compensated Derry with an hourly wage, as opposed to paying him a fixed amount, which is consistent with the treatment of an employee (compare Luster, 239 Mich App at 722 and McKissic, 42 Mich App at 209). All Star had the apparent authority to terminate Derry’s services and there was no indication that All Star had any liability if the relationship was terminated at will. All Star provided all the materials and equipment used and needed to complete the work. Finally, Derry performed his services under All Star’s general supervision and direction. These facts support a finding that Derry was an employee.
However, other evidence pointed to Derry being an independent contractor under the economic reality test. It was undisputed that, given the routine and repetitive nature of the work, Harrison and All Star did not directly supervise the manner in which Derry completed his work. Derry relied on income from his side jobs in addition to his income from All Star, and he held himself out to individuals in his neighborhood to render
Clearly, the evidence presented factual issues regarding Derry’s status as an employee or independent contractor that should be resolved by a trier of fact. Accordingly, because coverage under the general liability policy is dependent on Derry’s employment status, we reverse the court’s decision that Auto-Owners’ general liability policy provides liability coverage for Der-ry’s injuries as a matter of law and remand for further proceedings.
Finally, Auto-Owners relies on the auto exclusion contained in the general liability policy, which clearly and unambiguously precludes coverage for bodily injury arising out of the use, operation, loading, or unloading of an “auto.” The policy defines the term “auto”.as “a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment” (emphasis added). Under the policy, the use of an auto includes “loading and unloading,” which “does not include the movement of property by means of a mechanical device . . . that is not attached to the aircraft, watercraft, or ‘auto’.”
The term “attached” is not defined in the general liability policy. Where a term is not defined in an insurance policy, “[t]his Court must interpret the terms of the contract in accordance with their commonly used meanings.” Morinelli v Provident Life & Accident Ins Co, 242 Mich App 255, 262; 617 NW2d 777 (2000). We “may refer to dictionary definitions when appropriate when ascertaining the precise meaning of a particular term.” Id. The dictionary defines the verb “attach” as “to be fastened or joined; adhere” and “to fasten by sticking, tying, etc.” Webster’s New World Dictionary
It is undisputed that Derry’s injuries arose out of the use of a leaf vacuum machine that he was using to load leaves onto All Star’s truck when the machine tipped over, causing the “boom” of the vacuum to strike him. The testimony, however, was also undisputed that the leaf vacuum machine was not “attached,” i.e., “fastened,” “joined,” or “adhered,” to the truck at the time of Derry’s injuries, as required for the auto exclusion to apply to preclude coverage under the general liability policy. Instead, it is undisputed that the mechanism attaching the machine to the truck was not latched or locked, which caused the machine to tip. Accordingly, the trial court properly determined that the automobile exclusion is not applicable to preclude coverage under the general liability policy for Derry’s accident.
III. COMMERCIAL AUTOMOBILE POLICY
We finally consider whether Auto-Owners’ commercial automobile policy provides liability coverage or no-fault insurance coverage for Derry’s injuries.
Further, as in the employer’s liability exclusion contained in the general liability policy, the employee exclusions contained in the automobile policy
Auto-Owners next claims that the parked vehicle exclusion contained in its policy endorsement precludes no-fault coverage under the circumstances of this case.
We will not pay personal injury protection benefits for:
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c. bodily injury arising out of the ownership, operation, maintenance, or use of a parked motor vehicle unless:
(1) the motor vehicle was parked in such a way as to cause unreasonable risk of the bodily injury; or
(2) the bodily injury was a direct result of physical contact with:
(a) equipment permanently mounted on the motor vehicle while the equipment was being operated or used; or
(b) property being lifted onto or lowered from the motor vehicle in the loading or unloading process; or
(3) the bodily injury was sustained by the injured person while occupying the motor vehicle. [Emphasis deleted.]
We disagree with the trial court’s determination that this case fell within the policy’s exception to the parked vehicle exclusion where the bodily injury was a direct result of physical contact with “property being lifted onto or lowered from the motor vehicle in the loading or unloading process[.]”
We next address Derry’s argument on appeal that this case falls within the policy’s exception to the parked vehicle exclusion providing no-fault coverage where the injury “was a direct result of physical contact with . . . equipment permanently mounted on the motor vehicle while the equipment was being operated or used[.]” (Emphasis deleted.) Derry sustained his injury from direct physical contact with the boom of the leaf vacuum machine when the machine tipped over. It is undisputed that the machine was not “permanently mounted” on the truck because the machine was not locked or latched to the truck at the time it tipped over causing the boom to strike Derry. Accordingly, this exception to the parked vehicle exclusion is inapplicable, and thus, the exclusion applies to preclude no-fault coverage under the facts of this case.
Finally, we decline to consider Derry’s unpreserved argument on appeal that collateral estoppel bars Auto-
In sum, we conclude that Derry is not covered under workers’ compensation only because we are obligated under MCR 7.215(J) to follow the decision in Amerisure. Were we free to apply our own interpretation of MCL 418.161(l)(n), we would conclude that Derry was, in fact, an employee and that his injuries were covered
We do, however, agree with appellant that the trial court erred by granting summary disposition with respect to the applicability of other exclusions in the automobile and general liability policies because a genuine issue of material fact exists regarding whether those exclusions apply. Accordingly, we reverse that part of the trial court’s decision and remand for further consideration of those exclusions.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs, neither party having prevailed in full.
JANSEN, EJ., and SAWYER and SERVITTO, JJ., concurred.
Auto-Owners does not dispute that Derry himself is not an employer subject to the workers’ compensation act, MCL 418.161(l)(n).
At the time of the Amerisure opinion, the statutory language at issue was located in § 161(l)(d) rather than § 161(l)(n), and had only a slight change in wording that does not affect the interpretation of the statute.
The general coverage provision of the general liability policy, provides:
We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking “bodily injury” or “property damage” to which this insurance does not apply.
We disagree with Derry’s argument on appeal that the Court should not employ the economic reality test to determine if an individual was an employee within the meaning of the general liability policy. Derry contends the test under the workers’ compensation act, MCL 418.161(1), is the appropriate test. However, because the employer’s liability exclusion contained in the general liability policy does not refer to or is not based on the workers’ compensation act, we do not believe that the definition of employee as provided for under MCL 418.161(1) should be used to determine whether coverage is precluded under the employer’s general liability policy. See People v Yamat, 475 Mich 49, 54-58; 714 NW2d 335 (2006), suggesting that it is improper for courts to use cases interpreting insurance contract terms to interpret unambiguous statutory terms.
Auto-Owners’ automobile policy provides liability coverage, in pertinent part:
We will pay damages for bodily injury and property damage for which you become legally responsible because of or arising out of the ownership, maintenance or use of your automobile (that is not a trailer) as an automobile. [Emphasis deleted.]
Under the employee exclusions contained in Auto-Owners’ automobile policy, liability coverage is not provided:
l. to your employee for claims brought against him or her by another of your employees injured on the job.
m. to any person or organization for bodily injury to:
(1) an employee of that person or organization; or
(2) a spouse, child, parent, brother or sister of the employee which results from the injury to the employee;
when that injury arises out of and in the course of employment by that person or organization. [Emphasis deleted.]
The policy’s “Michigan No-Fault Endorsement” provides:
Subject to the provisions of this endorsement and of the policy to which this endorsement is attached, we will pay personal injury protection benefits to or on behalf of an injured person for accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle, subject to the provisions of Chapter 31 of the Michigan Insurance Code. Ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle means that the involvement of the motor vehicle in the bodily injury was directly related to the transportation function of the motor vehicle. [Emphasis deleted.]
It is not argued that the exceptions to the parked vehicle exclusion (c)(1) and (c)(3) of the no-fault endorsement apply to this case. There is no evidence indicating that the truck was parked in such a manner so as to cause an unreasonable risk of injury. Further, it is undisputed that Derry did not sustain his injuries while occupying the truck.