The Privatization of Roads and Highways - Ludwig von Mises Institute

344 The Privatization of Roads and Highways
government criminals who prevent private entrepreneurs from
setting up road and highway businesses, and the contrary-to-fact
conditional, selfsame private entrepreneurs who would set up
road and highway businesses were they only allowed to do so by
law. So the question: “does liability fall on the landowner for an
accident involving two other parties on his premises?” must be
answered for only these two, government criminals33 and private
entrepreneurs, not any “ordinary criminals.”
The first issue has already been answered: yes, the road
socialists cause some 40,000 highway fatalities, and they are
morally, and should be legally, responsible for all of them. Suppose
now a system of private highways on which, say, five thousand
people die annually. Should the private road owners be
legally responsible for any of them? It all depends upon the contract
in operation between these entrepreneurs and their customers.
If nothing at all is specified, we must resort to implicit
contracts, a dangerous legal arena. But, while we cannot fully
and confidently predict the operation of a now nonexistent highway
industry, it seems altogether likely that the private road
owners would insist upon contracts not holding themselves
liable for whatever few fatalities still occurred in this venue. That
being the case, White’s question can be answered definitively: in
the free society, no street owner would be liable for any traffic
deaths that occurred on his premises.
This, of course, is not to deny that present day courts would
have none of this. Given our litigious society, there is no doubt
that private road owners would be subjected to all sorts of law
suits by those who had been hurt in traffic accidents. 34 It is
unlikely in the extreme that judges of this ilk would allow such
33I apologize for the continual use of this phrase. I find I am quite unable
to resist.
34If you can sue gun manufacturers for crimes committed with their
product, there is no limit to the search for deep pockets or for perversions
of liability. See on this Rothbard (1982b).