NYC mom whose teen son died subway surfing can sue TikTok, Instagram, judge says

A Manhattan mom whose 15-year-old son died while subway surfing can move forward with a lawsuit against the social media companies that she says helped to popularize the dangerous trend, a state judge has ruled.

Norma Nazario sued TikTok parent company ByteDance, Instagram parent company Meta, the MTA and the New York City Transit Authority after her son, Zackery Nazario, fell off the top of a subway car and died in February 2023. She accused the social media companies of creating addictive apps that inundate young people with videos that encourage them to participate in unsafe activities. She also accused the transit system of not doing enough to prevent subway surfing.

In a decision late last month, Justice Paul A. Goetz dismissed several of Nazario’s claims against the companies and dropped transit officials from the lawsuit. But in his 19-page ruling, he said the mother should be allowed to continue to pursue many of the allegations in her case against ByteDance and Meta. The judge said Nazario should have the chance to gather more information from the companies and learn whether they may have targeted susceptible young people with content about subway surfing to keep them scrolling on the apps.

“[I]t is plausible that the social media defendants’ role exceeded that of neutral assistance in promoting content, and constituted active identification of users who would be most impacted by the content,” Goetz wrote.

Three people have died so far this year while subway surfing in New York City, and six people died last year, according to NYPD data. The ruling paves the way for Nazario and other parents whose kids have died to seek accountability from the social media apps where videos of hazardous behavior proliferate. In Nazario’s case, it could force ByteDance and Meta to turn over troves of internal information that could illuminate whether the companies’ actions contributed to her son’s death.

Nazario declined to be interviewed. At a press conference last year, she held a small photo of her son from his funeral. "No mother should have to carry her child's funeral card," she said at the time.

“The social media companies need to step up,” she said. “Take these videos down and stop pushing harmful challenges to our kids.”

Nazario’s attorney, Joe Belluck, said his client hopes to to “send a message to these companies that there need to be guardrails about this type of content.”

“ This is something that was preventable,” Belluck said. “She wants to try to prevent other parents from going through this type of experience.”

A lawyer for ByteDance referred questions to TikTok, which did not respond to a request for comment. A Meta spokesperson said the company is disappointed in the ruling and will continue to work with the MTA to address subway surfing. The spokesperson said videos encouraging dangerous behavior violate Meta’s policies and are removed when the company becomes aware of them.

Nazario, elected officials push companies to address subway surfing

On the evening of Feb. 20, 2023, Zackery Nazario and his girlfriend boarded a Brooklyn-bound J train, opened the door between two cars and climbed atop the train, according to court papers. While riding over the Williamsburg Bridge, the lawsuit states, he looked back at his girlfriend and hit his head on a beam. He fell off the train and was run over, dying at the scene.

Norma Nazario said in her lawsuit that her son got his first phone when he was about 12 and became “addicted” to Instagram and TikTok as he got older. She said the apps promoted subway surfing and other dangerous behavior through “challenges” that encourage users to record themselves taking part in potentially hazardous trends, like cooking chicken in NyQuil or suffocating themselves until they faint. Nazario looked through her son’s social media feed after his death and found his algorithm had fed him various posts about subway surfing in the weeks before he tried it himself, according to the lawsuit.

Nazario accused the apps of creating an algorithm that pushes those types of videos to young users without regard for their safety. She also said the apps imperil children by not verifying users’ ages or providing sufficient warnings to kids and parents.

The Federal Communications Decency Act makes it difficult to hold tech companies responsible for harmful posts by third-party users. ByteDance and Meta argue in court papers that the law should apply in this case. But Nazario argued that the companies shouldn’t be protected. The judge said Nazario should be able to gather more information to support her claims.

“We’re going to follow the path as far as we can to try to learn what’s going on and educate the public and make changes here,” Belluck said.

Nazario’s attorney said he’s not aware of any other lawsuits filed against social media platforms by parents whose kids died while subway surfing. But there are lawsuits pending in other parts of the country that have accused the companies of creating defective products that caused harm and death. In Buffalo, a survivor of the Tops grocery store mass shooting and several family members of the victims have sued several social media companies who they say radicalized the shooter. An Erie County judge has allowed that case to proceed.

City and state officials have urged social media companies to do more to prevent subway surfing in recent years, amid a series of deaths. In September 2023, companies promised to automatically remove videos that promote the hazardous stunt. Six months later, state lawmakers wrote a letter to leaders of the social media giants accusing them of not doing enough to address the issue.

The MTA has tried to deter subway surfing through its “Ride inside, stay alive” campaign, which has recruited high school students and BMX athlete Nigel Sylvester to warn teens about the dangers. The NYPD launched an essay contest with a $500 prize for high schoolers to share their recommendations to stop the scourge of subway surfing. Mayor Eric Adams has also asked New Yorkers to call 911 if they see people subway surfing and has deployed drones and response teams to search for subway surfers and remove them from the tops of train cars.

“We are doing everything we can to raise awareness against this dangerous trend, but we need all New Yorkers — and our social media companies — to do their part, too,” Adams said in a post on X last fall after two teens were run over by a train while subway surfing. “No post is worth your future.”