Mother Sues TikTok and Instagram After Son’s Subway Surfing Death

Introduction to the Tragedy

Norma Nazario still remembers the knock at the door of her Alphabet City apartment the night her 15-year-old son, Zackery, died attempting the perilous activity that involves riding atop fast-moving subway trains as they speed through the city.

It was 10 p.m., Feb. 20, 2023, when police informed her that her son, a student at The Clinton School in Union Square, had been killed while subway surfing on the Williamsburg Bridge that evening. He had climbed atop a Manhattan-bound J train with his girlfriend and was struck by an overhead beam, dying instantly.

The Incident and Its Aftermath

“It was a February evening, it was dark out, and I guess he didn’t see the beam,” Ms. Nazario told amNewYork. “And then, unfortunately, the train was going so fast that the impact pushed him under the train.”
Zackery was one of five individuals who died while subway surfing in 2023. The following year, the number rose to six fatalities, including an 11-year-old. Three more deaths have already been linked to subway surfing this year, with the most recent occurring on July 4, when a 15-year-old boy from the Bronx was killed.
Nazario said her son was an athletic, good student who loved history and dreamed of joining the Marines. “He really loved life,” she said through tears. “He would have made a difference. He was a light for me. He was a brilliant boy.”

The Role of Social Media

This made it all the more confusing for her to understand what possessed her son to climb on top of the J train that evening. Then, she gained access to his TikTok and Instagram accounts, which she said he had become “addicted to.”
What she found, she said, was a flood of algorithm-driven videos promoting risky challenges, including subway surfing, along with content that she said appeared to exacerbate his anxiety and low self-esteem.
“I wish I had known,” she said. “They kept pushing and pushing this stuff at him. I can’t even imagine how he felt, the pressure that he felt to go do this.”

The Lawsuit Against TikTok and Instagram

Now, more than two years later, Nazario’s wrongful death lawsuit against social media giants TikTok (ByteDance Inc.) and Instagram (Meta Platforms Inc.) is proceeding to trial, where she aims to prove the platforms promoted the viral stunt that killed her son.
Zackery in childhood photos shared by his family. The 15-year-old loved history, dreamed of joining the Marines, and was remembered by his mother as “a brilliant boy” with “so much to offer the world.”

Not Going to Stop

Subway surfing is not a new trend and has existed for decades in the city, but the MTA and NYPD have both maintained that the uptick in the deadly trend amongst teenagers has been fueled by videos circulating through social media.
A New York court ruled on June 27 that Nazario’s case could proceed on negligence and product liability grounds, rejecting social media companies’ efforts to dismiss based on Section 230 of the Communications Decency Act and the First Amendment.

The Court Ruling

In his ruling, Judge Paul Goetz wrote that it was plausible that the social media platform’s role “exceeded that of neutral assistance in promoting content,” and “constituted active identification of users who would be most impacted by the content.”
“The court was primarily focused on whether or not claims were preempted by Section 230,” Matthew Bergman, founder of the Social Media Victims Law Center and lead attorney in the case, told amNY of the federal law which has so far served as a shield for platforms from taking legal accountability for content shared on their platforms and boosted by their algorithms.

Safety Online and on the Tracks

Since Zachary’s death, Nazario has become an outspoken advocate for online safety reforms. She supported the recent passage of the New York Child Data Protection Act and Stop Addictive Feeds Exploitation (SAFE) for Kids Act, signed by Gov. Kathy Hochul on June 20.
Under the New York Child Data Protection Act, digital platforms are barred from collecting, using, sharing, or selling minors’ personal data for advertising unless they obtain informed consent, and only when the data use is essential to the platform’s basic function. Parental consent is mandatory for children under 13.
The SAFE for Kids Act mandates that platforms limit algorithm-driven content for users under 18. Unless a parent provides consent, minors must be served non-addictive, non-curated content feeds.
Norma Nazario accepts a posthumous high school diploma on behalf of her late son, Zackery, during a graduation ceremony at The Clinton School. She is pictured with Ida Cesarano of The Clinton School, and New York City Councilwoman Carlina Rivera.
Photos courtesy of Norma Nazario

The Ongoing Battle

Bergman acknowledged that New York’s recent child safety legislation is an important step in protecting children online, but that civil litigation is still needed to bring about greater change. “There’s a vital role for civil justice, because that’s the vehicle by which social media companies can be held financially accountable for the harms that their platforms inflict on young kids,” he said.
He noted that engagement-based algorithms are at the heart of the problem. “The platforms make their money based on engagement, because the more engaged kids are, the more advertising can be put in front of them,” Bergman explained. “The companies design social media products that show kids not what they want to see, but what they can’t look away from.”

Conclusion

The death of Zackery Nazario is a tragic reminder of the dangers of subway surfing and the potential influence of social media on young minds. As his mother continues her advocacy for online safety reforms and pursues her lawsuit against TikTok and Instagram, the hope is that such tragedies can be prevented in the future.

FAQs

1. What is subway surfing?

   • Subway surfing refers to the act of riding on the outside of a subway train, often on the roof, as it moves. This activity is extremely dangerous and has led to numerous fatalities and injuries.

2. How many people have died from subway surfing?

   • According to the article, in 2023, five individuals died from subway surfing. The number increased to six in the following year, including an 11-year-old. There have been three more deaths linked to subway surfing in the current year.

3. What is the role of social media in subway surfing?

   • Social media platforms, such as TikTok and Instagram, have been accused of promoting risky challenges, including subway surfing, through algorithm-driven content. This can lead to the normalization and encouragement of dangerous behaviors among young users.

4. What legal actions are being taken?

   • Norma Nazario, the mother of Zackery, is pursuing a wrongful death lawsuit against TikTok and Instagram, alleging that these platforms promoted the viral stunt that killed her son.
5. What reforms are being advocated for?
   • Advocates, including Norma Nazario, are pushing for online safety reforms, such as the New York Child Data Protection Act and the Stop Addictive Feeds Exploitation (SAFE) for Kids Act, to limit the collection and use of minors’ personal data and to reduce the promotion of harmful content to young users.