concurring:

I concur in the majority opinion. I write separately to set forth in a little more detail what I believe to be the law of California on the question whether property damage, limited to damage to the product itself, may be recovered in a strict liability action.

In Seely v. White Motor Co., 63 Cal.2d 9 , 403 P.2d 145 , 45 Cal.Rptr. 17 (1965), the California Supreme Court held that the plaintiff had not stated a claim in strict liability for damage to the product because there was no evidence of causation. Id. at 19 , 403 P.2d at 152 , 45 Cal.Rptr. at 24 . The court did not hold that recovery in strict liability is not available if the only damage is to the product itself. Seely did hold that “economic loss” is not a loss recoverable in strict liability, but Seely did not hold that damage to the product alone is such an “economic loss.”

The United States Supreme Court in East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 871 , 106 S.Ct. 2295, 2302 , 90 L.Ed.2d 865 (1986), gave Seely a broader reading than its holding. There, in an admiralty case, the Court held that damages for injury to the product itself could not be recovered on a theory of strict liability under California law. Seely was cited as support for this proposition.

At this point it is well to bear in mind the old adage that the Court is not last because it is infallible; rather, it is infallible because it is last. And on the question of what the law is in California, the Court is not last. California is. Courts in California have held that although losses of an economic nature other than damage to the product itself may not be recovered in a tort action for strict liability, see Huang v. Garner, 157 Cal.App.3d 404, 420 , 203 Cal. *828 Rptr. 800, 810 (1984); Pisano v. American Leasing, 146 Cal.App.3d 194, 197 , 194 Cal.Rptr. 77, 79 (1983); International Knights of Wine, Inc. v. Ball Corp., 110 Cal.App.3d at 1001, 1008, 168 Cal.Rptr. 301, 304 (1980) (Fleming, J., concurring and dissenting), damages may be recovered in a strict liability action when damage is limited to injury to the product itself. Sacramento Regional Transit Dist. v. Grumman Flxible, 158 Cal.App.3d 289, 293 , 204 Cal.Rptr. 736, 738 (1984); International Knights of Wine, 110 Cal.App.3d at 1005 , 168 Cal.Rptr. at 302 .

In another California appellate case, Gherna v. Ford Motor Co., 246 Cal.App.2d 639 , 55 Cal.Rptr. 94 (1966), a defect in the wiring of the plaintiffs car caused a fire which damaged the car. Although the only property damage was the damage to the product, the court allowed recovery in strict liability. As interpreted by Sacramento Regional, the court in Gherna “impliedly held that [strict liability] is available where the property injured is the defective product.” 158 Cal.App.3d at 296 , 204 Cal.Rptr. at 740 .

Although these cases are decisions by California’s intermediate courts of appeal, they persuade me that under California law property damage for damage to the product itself may be recovered in a strict liability action. Indeed, we have said as much in Scandinavian Airlines Sys. v. United Aircraft Corp., 601 F.2d 425, 428-49 (9th Cir.1979). There, we recognized the risk-spreading rationale of California law under which property damage for injury to a product may be recovered in a strict liability action, but not where the action is “between parties who: (1) deal in a commercial setting, (2) from positions of relatively equal economic strength, (3) bargain the specifications of the product, and (4) negotiate concerning the risk of loss from defects in it.” Id. at 429 , quoting Kaiser Steel Corp. v. Westinghouse Elec. Corp., 55 Cal.App.3d 737, 748 , 127 Cal.Rptr. 838, 845 (1976).

It cannot be determined from the state of the record in the present case, whether Aris Helicopters’ claim for property damage could survive analysis of the Kaiser Steel factors which we endorsed in Scandinavian Airlines. The district court did not consider such an analysis in dismissing the complaint. The presence or absence of the Kaiser Steel factors does not appear on the face of the complaint. The question whether this should prompt a dismissal of the complaint with leave to amend, or whether the Kaiser Steel analysis should be undertaken in some other procedural context are matters which are best left to the district court for initial determination. Our reversal should include a remand specifically instructing the district court to undertake this task. Perhaps it does.

REVERSED and REMANDED.