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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
September 8, 1998
A party may file with the Supreme Court a
                                                                   Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                   Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                   of Wisconsin              STATS.
No.                                                                97-1695
STATE OF WISCONSIN                                                 IN COURT OF APPEALS
DISTRICT I
RICHARD ALVA,
PLAINTIFF-APPELLANT,
SENTRY INSURANCE COMPANY,
PLAINTIFF,
V.
HERB FITZGERALD COMPANY, INC.,
HERITAGE MUTUAL INSURANCE COMPANY,
FULTON BOILER WORKS, INC. AND
AMERICAN MANUFACTURERS MUTUAL
INSURANCE COMPANY,
DEFENDANTS-RESPONDENTS.
APPEAL from judgments of the circuit court for Milwaukee County:
JACQUELINE D. SCHELLINGER, Judge.   Affirmed.
Before Wedemeyer, P.J., Schudson and Curley, JJ.




No. 97-1695
PER CURIAM.     Richard Alva appeals from summary judgments
entered in favor of Herb Fitzgerald Company, Inc, Heritage Mutual Insurance
Company,  Fulton  Boiler  Works,  Inc.,  and  American  Manufacturers  Mutual
Insurance Company.   Alva claims the trial court erred in dismissing his products
liability action against the defendants because:                                         (1) the modification of the valve
handle by Alva’s employer did not constitute a substantial change in the condition
of the machine and was not linked to the accident; and (2) there was evidence to
support  his  negligence  claim.     Because  the  modification  performed  was  a
substantial and material change in the product linked to the accident, the trial court
did not err in dismissing the strict liability claim; and because Alva’s expert failed
to causally connect any of the remaining defects in the product to the injury, we
affirm.
I.   BACKGROUND
On  July  2,  1992,  Alva  was  severely  burned  while  working  at
Westwood  Dry Cleaners.    The  injury occurred when  Alva  was  attempting  to
perform a blowdown procedure on a boiler, which was manufactured by Fulton
Boiler Works and installed by Herb Fitzgerald.   Alva had never performed the
blowdown procedure before as his employer, Won Kim, usually performed this
task.   Kim, however, was in a hurry to make deliveries on the day the accident
occurred and had instructed Alva to perform the procedure.
Alva testified by deposition as to how the accident occurred.   He
pulled the blue-handled valve open, counted to seven and, at that point, he was
burned.   It is undisputed that, sometime prior to the accident, Kim had replaced the
manufacturer’s slow-opening wheel valve with the quick-opening, blue-handled
valve.
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No. 97-1695
Alva retained an expert witness, John DeRosia, who attested that the
boiler was defective.   DeRosia rendered a report, indicating the following defects:
(1) the type of blowdown valve used invited an oversupply of steam; (2) the boiler
room drains and vents were defective in that they allowed the introduction into the
confined space of the boiler room a discharge of dangerously high temperature and
steam;  (3) the  blowdown  separator  vent piping was reduced in size  above  its
connection to the separator, creating back pressure, which would contribute to the
escape of steam; and (4) the boiler pressure gauge should have been located in a
position where the operator of the boiler could see it.
During  his  deposition,  DeRosia  testified  that  the  quick-opening
valve was the primary factor in this accident.   He did not testify as to a causal
connection between the accident and any of the other defective parts.
Fulton Boiler Works and Herb Fitzgerald filed motions for summary
judgment, alleging that Kim had substantially changed the blowdown separator by
replacing the valve after the separator had left the control of the manufacturer and
after the product was installed.    The motions alleged that replacing the slow-
opening wheel valve with the quick-opening valve changed the character and
design of the product, thereby materially altering the product.   The motions allege
that, as a result, Alva’s strict liability theory fails.    The trial court agreed and
dismissed Alva’s strict liability claim.
During the summary judgment hearing, the trial court also ruled that
Alva’s  negligence  claim  should  be  dismissed  because  there  was  no  evidence
supporting the causation element.   Judgments were entered.   Alva now appeals.
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No. 97-1695
II.   DISCUSSION
This case comes to us after a grant of summary judgment.    The
standards governing our review of summary judgments have been repeated often
and, therefore, we need not do so here.   See Transportation Ins. Co. v. Hunzinger
Constr. Co., 179 Wis.2d 281, 289, 507 N.W.2d 136, 139 (Ct. App. 1993).   Our
review is de novo.   See id.
A.  Strict Liability.
Alva  claims  the  trial  court  should  not  have  dismissed  his  strict
liability claim because the replacement of the valve was not a substantial change
and was not linked to the accident.   We reject this claim.
“When  the  condition  of  a  product  at  the  time  of  an accident  is
substantially and materially different from its condition at the time it left the
control of the manufacturer or seller, the plaintiff will be unable to prove its prima
facie case and the strict products liability claim must be dismissed.”   Glassey v.
Continental Ins. Co., 176 Wis.2d 587, 600, 500 N.W.2d 295, 301 (1993).                     “A
substantial and material change is a change in the design, function or character of
the product linked to the accident.”   Id.
It is undisputed that sometime after installation of the boiler, Alva’s
employer replaced the manufacturer’s slow-opening wheel valve with a quick-
opening, blue-handled valve.   It is also clear from the record that the modification
of this valve was linked to the accident.   Alva testified that he opened the valve
seven  seconds  before  he  was  burned.    Alva’s  expert  testified  that  the  quick-
opening valve was the primary factor in the accident and that a slow-opening
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No. 97-1695
valve  would  have  allowed  throttling  of  the  blowdown  flow  and,  therefore,
prevented an oversupply of steam to the blowdown separator.
Based on these facts, we conclude that replacement of the slow-
opening valve with the quick-opening valve constitutes a substantial and material
modification of the product and that the modification was linked to the accident.
Accordingly, the trial court did not err in dismissing Alva’s strict liability claim.
Neither  the  manufacturer  nor  the  installer  can  be  held  responsible  when  the
employer’s substantial modifications to the product caused the injury.1
B.  Negligence Claim.
Alva also claims that there is evidence to support his negligence
claim.   We disagree.
Specifically, he contends that because DeRosia found that the boiler
had three defects in addition to the valve, he could maintain his negligence claim
against the defendants.   The trial court dismissed the negligence claims because,
although DeRosia asserted three additional defective parts to the boiler, there was
no evidence that these defects were causally linked to the accident.   After our
review, we reach the same conclusion.
Alva  first  points  to DeRosia’s  conclusion  that  the  boiler  room’s
drains and vents were defective.   However, DeRosia’s own deposition testimony
disputes this argument.   He testified that if Alva had turned on the cold water, as
he was instructed, and slowly opened the valve, as he was also instructed, the
1  Our conclusion is not altered by Alva’s claim, made for the first time on appeal, that he
never actually opened the valve.  Such claim is refuted by the record.
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No. 97-1695
accident would not have occurred.   Therefore, any defect in the drains and vents
had nothing to do with this accident.   DeRosia also admitted that the system was
able  to  function  successfully  as  vented,  without  any  personal  injury  on  all
occasions, except when Alva operated the system.
Alva next claims that DeRosia theorized that the vent piping was
defective.   However, he testified in his deposition that the cause of the accident
was Alva’s action in opening the quick-valve all the way, not the size of the
piping.
Finally, DeRosia’s third alternative allegation of a defective part was
the location of the pressure gauge; that is, it was not located where the operator of
the boiler could see it when turning the valve.   However, the record demonstrates
that the location of the pressure gauge was not a causal factor because Alva had no
idea he was supposed to check the gauge before opening the valve.   Alva was not
aware  of  the  significance  of  the  pressure  and,  therefore,  the  gauge’s location
cannot be a basis for liability.   There is nothing in the record supporting a causal
connection between the foregoing alleged defects and the accident.
Moreover, there is no evidence as to improper installation of the
boiler by Herb Fitzgerald.   The record demonstrates that the installation satisfied
code requirements and passed state inspection.   Alva fails to submit any evidence
to  the  contrary.    Therefore,  the  trial  court  did  not  err  in  dismissing  Alva’s
negligence claim.
By the Court.—Judgments affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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