Gnarly Lawsuit
‘Teen Wolf’ was a classic 1980s movie that starred Michael J. Fox as Scott, a short, somewhat nerdy high schooler who suddenly became the Big Man on Campus after turning into a werewolf. One scene in the flick shows Scott “van surfing,” or standing on top of a moving van while driving down the road.
Although van surfing looked cool, we all knew it was a movie and should not be tried at home (especially since the special effects in 1985 made it painfully obvious that the surfer was a stuntman).
Unfortunately, due to social media, today’s kids aren’t always able to make that distinction.
On February 20, 2023, 15-year-old Zackery Nazario boarded a Brooklyn-bound J train with his girlfriend. The pair opened the unlocked train doors, walked in between two moving cars and climbed on top to “subway surf.” As the train crossed over the Williamsburg Bridge approaching the East River, Zackery was struck in the head by a beam, fell between the subway cars, and was run over and killed.
According to the New York Police Department, there have been thirteen subway surfing deaths since 2018. Similar deaths or injuries have been reported in San Francisco, Washington, D.C., Chicago and other U.S. cities. Hundreds of surfers have been arrested across the country, with most of them being juveniles and young adults.
In September of 2023, New York City officials launched the “Ride Inside, Stay Alive” campaign to stop surfing. The police escalated their intervention using “911 call data to deploy joint drone and field response teams of officers to areas experiencing the highest complaints of subway surfing.”
The Metropolitan Area Transit Authority of New York invested in open-gangway trains, making it more difficult for people to climb on top. The MTA also introduced laser and infrared sensors to detect when riders have entered the tracks between stations, in tunnels or in other restricted areas and has worked with social media companies to flag and remove over 11,000 posts that depict subway surfing.
After Zackery’s accident, his mother, Norma, discovered numerous subway surfing videos on his phone. She claims he became “addicted” to Instagram and TikTok and that he was introduced to the trend from social media app algorithms. On the one-year anniversary of his death, Norma filed suit against Meta, which owns Facebook and Instagram, as well as TikTok, its parent company, ByteDance, claiming wrongful death, product liability and negligence.
In her complaint, Norma alleges that Zackery was “targeted, goaded and encouraged” to subway surf. Matthew Bergman, who founded the Social Media Victims Law Center, represents her. He contends that Zackery’s death was neither an “accident” nor a “coincidence,” saying, “It was a direct and foreseeable result of the programming and design decisions that Instagram and TikTok made to prioritize engagement over safety.”
“Teenagers make bad decisions,” Bergman said. “They don’t deserve to die from them.”
Meta and ByteDance deny any wrongdoing and claim they are shielded from liability arising from the content created by their users under the Communications Decency Act. The Act protects platforms from being treated as publishers of content they didn’t create, encouraging them to host content without fear of being held liable for things posted on their sites. The companies also claim free speech protection under the First Amendment to the U.S. Constitution.
Justice Paul Goetz, however, recently ruled that Norma’s claims can proceed. “Based on the allegations in the complaint,” he wrote, “it 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.”
My doctor told me I was addicted to social media, but I said I didn’t follow him.
Reg P. Wydeven
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