dissenting.
1 1 The court holds today that Alfalfa Elec-trie Cooperative, Inc., (AEC), did not owe to the plaintiffs a nondelegable duty of care. *461Its decision is rested solely on the principles that govern the relationship between the owners of dominant and servient estates. I recede from today's pronouncement. I would (a) declare that Oklahoma's common law must be consistent with the text adopted by § 428 of the Restatement (Second) of Torts1 and (b) find reversible error in the trial court's failwre to instruct the jury that-as a matter of law-the electric cooperative, which owes a nondelegable duty to the public, cannot free itself from liability by proof that the actual harm-dealing actor perForming the hirer's work is an entity which stood in the status of an independent contractor.
I
ANATOMY OF THE CASE
2 AEC, a rural electrical utility company, hired a construction company, O & M Power Line Construction Co. (0 & M), to replace power-line poles on the cooperative's easement. The poles were located in a drought-stricken area. During the construction 0 & M's truck started a fire that engulfed the grass beneath it and then quickly spread far and wide. The resulting conflagration damaged over seventy-seven thousand acres of range land.
13 Landowners affected by the fire brought a class action against both AEC and the construction company. In the course of trial proceedings the nist prius court refused to give a jury instruction, requested by the landowners, which would have exposed AEC to lability for the construction company's negligence. The jury returned a verdict for AEC and the landowners appealed.
T4 The Court of Civil Appeals reversed, holding that-as a matter of law-AEC had a nondelegable duty to use its easements in a non-negligent manner regardless of whether harm resulted from work done by one who was an independent contractor. In today's pronouncement the court holds that the benefits of the servient estate owner's nondelegable duty extends solely to the dominant estate holder and no one else. The court's opinion, which severely restricts the outer limit of the law's five-hundred-year-old nondelegable duty concept that is applicable here, overlooks the dispos-itive issue-that of the essence of AEC's lability qua a franchised utility. Today's pronouncement ignores AEC's status as a public service company and refuses to impose upon it a nondelegable duty of due care in laying transmission lines. The degree of care that is attached by law to the interaction of servient with dominant estate holders, inter se, is irrelevant to the point here in contest. I hence recede from the court's view, implicit in today's holding, that a rural electric cooperative, gua public service utility, does not owe to the public a nondelegable duty of ordinary care in erecting and maintaining its transmission facilities.
II
AS A PUBLIC UTILITY, A RURAL ELECTRIC COOPERATIVE HAS A NONDELEGABLE DUTY TO THE PUBLIC AND CANNOT ESCAPE ITS LIABILITY FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR ENGAGED IN CONSTRUCTING THE UTILITY'S POWER LINES.
15 AEC is an electric cooperative organized under the Rural Electric Cooperative Act.2 Rural electric cooperatives are defined by statute as public utilities.3 Restatement (Second) of Torts, § 428,4 which reflects the *462current status of the American common law,5 teaches that a public utility company is liable for the negligence of its independent contractor in performing work that is part and parcel of the company's duty gua public utility.
6 The concept of nondelegable duty owed by a public utility originated in the early common law.6 The immediate predecessor of a present-day public utility was then known as a "public calling" an activity serving the public good.7 Precursors of modern utilities, such as operators of ferries or mills, were merchants with a special franchise granted to them as a monopoly with the understanding that the holder would be available for the public good, fulfilling a needed community service.8 Duty was conferred by the government-State or Crown-as a public trust and, once accepted by the recipient, was enforced for the public benefit.9 Before the tort rule of respondeat superior was ever crafted, public calling operators bore liability that could mot be shared with anyone hired to do work integral to their public calling.10
{7 The public calling theory has been incorporated into present-day law that governs common carriers, such as trucking companies and railroads, as well as all public utilities, including rural electric cooperatives. The essence of public utility liability is best understood when it is compared with the legal responsibility of common carriers. The latter class owes to a customer the highest degree of care which may not be lowered by hiring an independent contractor to assist with shipping the goods. In short, although a hirer cannot ordinarily be held liable for the negligence of an independent contractor, that rule does not apply where the hirer contracts for the performance of a duty imposed by law.11 While a common carrier (or innkeeper) may engage an independent contractor to perform some of the former's nondelegable function, it may not pass off to the latter the ultimate legal responsibility for the proper performance of that duty.12 Under the nondelega-*463ble duty rule, an innkeeper may be held vicariously liable for an independent contractor's failure to exercise reasonable care even if the innkeeper has himself exercised due care.13 The text of § 428 extends the ancient precept of nondelegable duty by one in a public calling to public service companies which otherwise would be able to avoid liability by hiring an independent contractor.14 AEC, as a public utility, bears a nondele-gable duty to the public.15 The court need not pause to analyze today the inter-relationship of dominant with servient estate holders-a task that consumed a good portion of its pronouncement. The duty imposed on the AEC-as a public service company-indubitably extends beyond private contract or easement agreements to the public at large.16
T8 If I were writing for the court, I would expressly adopt today the text of Restatement (Second), of Torts § 428 as part of Oklahoma's common law.17 This the court is *464explicitly authorized to do by the provisions of 12 0.S.1991 § 2.18 The Restatement has long been recognized as a material source of the common law.19 It is only after its adoption by the highest court of a jurisdiction that the endorsed portions of the Restatement stand transformed into formal law.20 See tion 428 accurately reflects the present state of Oklahoma's common law, whose past jurisprudence clearly recognizes that utilities bear nondelegable duties for work that is integral to their public function 21 and presents "unreasonable risk of harm to others.22
*465III
SUMMARY
11 9 I would declare today that the national common-law norms found in the pertinent text of the Restatement (Second) are harmonious with this State's extant jurisprudence and should be given explicit endorsement. The rural electric cooperative's status as a public utility casts upon it the nondelega-ble duty that is owed to the public. The utility stands liable in damages for the independent contractor's want of due care in constructing transmission poles when facing apparent fire hazard.
. For the pertinent text of § 428 of the Restatement (Second) of Torts, see infra note 4.
. 18 O.S.1991 §§ 437.1 et seq.
. The terms of 17 O.S. 1991 § 158.50(5) define a "domestic public utility" as a "person doing business in the state, including any other person controlling such a domestic public utility, any substantial portion of the revenues of which, either directly or indirectly, are derived from the business of providing utility service in this state »
. The Restatement (Second) of Torts & 428 states that:
An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to Hability for physi*462cal harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.
. See Shirley Abrahamson, Refreshing Institutional Memories: Wisconsin and the American Law Institute, The Fairchild Lecture, 1995 Wis. L. Rev. 1, 3 (1995), where the author states: "... The restatements 'provide lawyers and judges with carefully formulated descriptions of the [common] law and traditionally have served as authoritative guides for both legal briefs and judicial opinions. " (emphasis supplied).
. The earliest cases that address themselves to nondelegable duties by public service providers date back to 1345. See Beaubek v. Waltham, Plea and Memoranda Rolls, A-5, m. 27 (1345), as recounted in The Innkeeper's Tale; The Legal Development of a Public Calling, 1996 Utah L. Rev. 51, 54.
. Charles K. Burdick, The Origin of the Peculiar Duties of Public Service Companies, 4 Colum. L.Rev. 514, 518 (1911).
. See generally, Jim Rossi, The Common Law "Duty to Serve" and Protection of Consumers in an Age of Competitive Retail Public Utility Restructuring, 51 Vand. L. Rev. 1233, 1236 (1998).
. People v. New York Central & Hudson River Railroad Co., 28 Hun. 543, 553 (N.Y. 1883).
. Rossi, supra note 8 at 1244-1246.
. In Copeland v. The Lodge Enterprises, Inc., 2000 OK 36, ¶ 12, n. 25, 4 P.3d 695, the court stated:
"The rule in Oklahoma is that a person who performs work through an independent contractor is not liable for damages to third persons caused by the negligence of the contractor except where the work is inherently dangerous or unlawful or where the employer owes a contractual or defined legal duty to the injured party in the performance of the work." (emphasis added) Williamson v. Fowler Toyota, Inc., 1998 OK 14, ¶ 7, 956 P.2d 858, 860, quoting from Hudgens v. Cook Industries, Inc., 1973 OK 145, ¶11, 521 P.2d 813, 815. See also, Huckins Hotel Co. v. Clampitt, 1924 OK 142, 101 Okla. 190, 224 P. 945, 946-47; Minnetonka Oil Co. v. Haviland, 1916 OK 103, 55 Okla. 43, 155 P. 217, 219; W. Page Keeton et al, Prosser and Keeton on the Law of Torts § 71, at 511-512 (5th Ed. 1984).
. See Great American Indemnity Co. v. Deatherage, 1935 OK 1156, 175 Okla. 28, 52 P.2d 827, 830-31 ("... the general rule of non liability of the contractee is that one on whom the law imposes a positive duty to the public or an individual cannot escape the responsibility of seeing that duty performed by delegating it to an independent contractor, and will be liable for injuries resulting from the contractor's negligence in the performance thereof"); U.S. Security Services Corp. v. Ramada Inn, Inc., 665 So.2d 268, 270 (Fla.App.1995); Copeland, supra note 11 at ¶12, n. 26 at 700.
. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 511 (5th ed.1984) ("... [The cases of nondelegable duty ... hold the employer liable for the negligence of the contractor, although he has himself done everything that could reasonably be required of him. They are thus cases of vicarious liability."); Copeland, supra note 11 at ¶12, n. 27 at 700.
. The liability of the common carrier and that of the public utility company have a joint origin in the law. For their analogous treatment, see National Trailer Convoy, Inc. v. Saul, 1962 OK 181, ¶8, 375 P.2d 922, 926, where the court states: "... [(WJhere public authority grants to an individual or corporation authority to engage in certain activities involving danger to the public, the duty to safeguard the public while performing such franchise activities, is legally nondelegable, and the franchise holder is therefore responsible for the conduct of those whom it permits to act under its franchise, even though such persons be independent contractors." The two theories evolved into separate but conceptually akin lines of case law. While common carriers are subject to strict liability, they and public utility companies are governed alike by a similar rule of nondelegability. Although the nondelegability rule applies in this case, common carrier's strict liability is not implicated here. For common carriers, see also United States v. Fruit Growers Exp. Co., 279 U.S. 363, 49 S.Ct. 374, 73 L.Ed. 739 (1929); Arthur v. Texas & P.R. Co., 204 U.S. 505, 27 S.Ct. 338, 51 L.Ed. 590 (1907); Bank of Kentucky v. Adams Exp. Co., 93 U.S. 174, 23 L.Ed. 872 (1876); St. Louis, I.M. & S.R. Co. v. Renfroe, 82 Ark. 143, 100 S.W. 889 (1907); New York, P & N R. Co. v. Cromwell, 98 Va. 227, 35 S.E. 444 (1900).
. Snyder v. Southern California Edison Co., 44 Cal.2d 793, 285 P.2d 912, 917 (Cal.1955) (utility companies are responsible for nearly all pole installations; construction and maintenance of lines, including poles, is a necessary part of the utilities' business.)
. See also, Newsome v. Surratt, 237 N.C. 297, 74 S.E.2d 732, 735 (N.C. 1953) (where a public authority grants an individual or corporation the right to engage in certain activities involving danger to the public, which right is denied to the general public, the duty to protect the public while performing such franchise activities is legally nondelegable and the franchise holder is therefore responsible for the conduct of those who are permitted to act under such franchises, even though such persons be independent contractors).
. The court's response to my urging that § 428 governs this claim deserves a monument to the heights of human naivete. It implicitly denies that using heavy machinery in parched terrain does not present a "special risk of fire." The court's opinion recognizes that the conditions in the area were "near drought" and that the fire spread across 80,000 acres of "extremely dry rangeland and crop land ..." (emphasis added). Appellant's brief argues that AEC began working in the area where iwo months earlier another fire had engulfed twenty acres and then continued to proceed after red-flag-fire alerts and a burn ban had been issued. The danger of fire in the setting described by the testimony is the special subject of demonstrated legislative concern. See 2 O.S. 1991 §§ 741-748. The text of § 741 provides: "
If any person shall set or cause to be set on fire « any woods, marsh of prairie, or any grass or stubble lands except as hereinafter provided, such person shall be deemed guilty of a misdemeanor, and upon conviction thereof, be fined a sum not more than Five Hundred Dollars ($500.00) nor less than Ten dollars ($10.00), or imprisonment in the county ;jail for a period of not longer than six (6) months, one or both at the discretion of the court, and shall also be liable in a civil action to any person or persons damaged by such fire to the amount of such damages.
(emphasis added). The text of § 746 adds illumination provided by these words:
If any such person shall wilfully, negligently or carelessly set or cause to be set on fire any woods, marsh or prairie in the state, *** shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum not to exceed Two Hundred Dollars ($200.00), or imprisoned in the county jail not more than one (1) year, or by both such fine and impris*464onment in the discretion of the court, and shall also be liable in a civil action to any person, damaged by such fire to the amount.
(emphasis added.)
As to liability for unleashed fire, § 747 provides:
If the ranch, buildings, improvements, fencings, timber, marsh or other property of any person, shall be injured or destroyed by any such fire as described in the preceding section, the person who shall cause or allow the same shall be responsible to the person injured thereby for all damages or injury caused or sustained by reason of such fire. If the cattle ranch or improvements of any person, shall be injured or destroyed by any such fire as described in the preceding section or if the hay upon any such ranch, or the grass growing thereon, shall be injured by any such fire as aforesaid, the person who shall cause or allow the same, shall be responsible to the person, owning or claiming the same and injured thereby, for all damage or injury caused or sustained by reason of any such fire. .
(emphasis added).
As to damages from unleashed fire, § 748 provides:
In any action instituted in any court to recover damages under the provisions of this article, it shall not be necessary for any person, injured by any such fire to allege in his pleadings, or prove on trial of such action, title to the real property over which such fire has spread, but it shall be sufficient in any such action to allege and prove that the person, so injured was in the occupancy or possession of any such ranch, buildings, such cattle range; if being the purpose and intention of this article to protect the possession as aforesaid of any person whether he have title to the land so claimed or occupied or not. Any railroad company operating any line in this state shall be liable for all damages sustained by fire originating from operating its road.
(emphasis added).
. The terms of 12 0.$.1991 § 2 provide: The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object. (emphasis added).
. Restatements of the common law on chosen subjects, which are produced by the American Law Institute, a private organization of judges, practitioners, and law teachers, are scholarly "codifications of American common law in various substantive law areas, based upon the decisions of the courts of last resort of the states." (emphasis added). Winters, The CONTRIBUTION OF PROFESSIONAL ORGANIZATIONS TO STABILITY AND CHANCE THROUGH LAW 265, 269 (1963). For a history of the Institute, see Goodrich, The Story of the American Law Institute, 1951, Wash.U.L.Q. 283; Krause, Gans, 1 Tes American Law Or Torts § 1:18 at 61 (1983); Prosser and Keeton, supra note 13, § 3 at 17; Shirley Abrahamson, supra note 5, at 7-24.
. "A distinction must be recognized between what might be called the material source of legal precepts, that form which the content of precepts is derived, and the formal source, that from which it derives its validity as an authoritative guide to judicial and administrative determinations * ** We may conveniently distinguish as the two ideas by using the term "source of law" for the material source and "form of law" for the form given to the precept by the formal source. In this sense, by "sources of law' we refer to the agencies and methods by which the content of legal precepts is found or made and shaped. By "forms of law"" we refer to the modes in which the legal precepts authoritatively expressed: the authoritative literary shapes they take on-what we turn to when we seek an authoritative statement of the precept." (emphasis added). Roscoe Pound, THs History Anp System Or Trg Common Law 84-85 (1939).
. Braden v. Hendricks, 1985 OK 14, ¶19, 695 P.2d 1343, 1352, n. 26 ("One who owes a non-delegable duty to another cannot escape liability for its performance by engaging an independent contractor, and, in such cases, the rule that the hirer is not liable for actionable conduct of an independent contractor will not be applied.") See Shell Pipe Line Corp. v. Curtis, 1955 OK 212, ¶13, 287 P.2d 681, 685; Allied Hotels, Limited v. Barden, 1964 OK 16, ¶15; 389 P.2d 968, 971. In Oklahoma Ry. Co. v. Boyd, 1929 OK 82, 140 Okla. 45, 282 P. 157, 162, it is said, "Where one owes a nondelegable duty to third persons, he cannot escape the obligation of performing such duty by engaging for its performance through or by a contractor, and in such cases the rule that an employer is not liable for the negligence of an independent contractor has no application."
. See Restatement (Second) of Torts § 428, supra note 4.