The MTA, Meta, and ByteDance Ltd. (TikTok) are jointly responsible for a rash of “subway surfing” deaths, according to court documents.

Norma Nazario claims that countless videos on Meta Platforms Inc.’s Instagram and ByteDance Ltd.’s TikTok encouraged her 15-year-old son to take part in the dangerous challenge. He died when he climbed on top of a Brooklyn-bound J train and fell between the subway cars. Furthermore, the MTA knew that subway surfing was increasingly popular with young people but did nothing to lock doors or limit access, a lawsuit claims.

According to the suit, five subway surfing deaths occurred in New York City between 2018 and 2022. The trend accelerated in 2023, when five children, including the plaintiff’s son, died.

“This tragedy and the unimaginable suffering endured by the plaintiff was entirely preventable had Instagram and TikTok not ignored the health and safety of its users, particularly children using its product, in an effort to rake in greater profits,” court documents state. “Instagram and TikTok’s algorithms intentionally thrust unacceptably dangerous videos that Instagram and TikTok knew to be circulating on their platforms in front of an impressionable 15-year-old boy.”

Landowner Duty of Care

The MTA may well be legally responsible for these deaths, at least in part. Under New York law, subways are an attractive nuisance. Landowners are automatically responsible for child injuries if:

  • Owner knows children are likely to trespass (come onto the property without permission),
  • Hazard poses an unreasonable risk of serious injury or death,
  • Children don’t realize the danger,
  • Burden of limiting the risk of injury is light, and
  • Owner doesn’t use reasonable care to protect children.

Five children died attempting the subway surfing challenge in 2023 alone. The MTA clearly knew about the problem, which clearly posed an outsized risk of serious injury. Furthermore, the MTA didn’t take precautions to secure subways. These three items add up to a lack of reasonable care.

As far as the awareness of children is concerned, the risk-reward part of the brain doesn’t develop until about age 25. Younger people want the reward (social media likes and peer accolades), but they don’t appreciate the risk (dying).

As the Supreme Court of Texas has stated, the rationale behind the doctrine is that a device of unusually attractive nature may be “especially alluring to children of tender years” thereby impliedly inviting children to come upon the premise, and by such invitation, the children should be considered invitees instead of trespassers. 

Furthermore, because the doctrine may impose a substantial burden on property owners, it is generally narrowly construed to not include common or ordinary objects like walls, fences, or gates. Instead, it’s usually limited to swimming pools, construction sites, railyards (including subways), and junkyards.

Social Media Liability Issues

Before 2018, social media companies had an ironclad defense to such claims. They argued they just provided a platform and therefore weren’t responsible for injuries, like a date rape. 

The 2017 Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) cut the legs out from under that defense. Publishers, including social medial companies, are now responsible for any foreseeable injuries, such as a personal ad-related date rape, that the content they publish causes.

Evidence of foreseeability usually includes prior similar incidents related to that platform, overall risk of injury, as outlined above, and prior similar injuries related to any platform.

A personal injury lawyer must prove foreseeability by a preponderance of the evidence, or more likely than not. That’s one of the lowest burdens of proof in New York law. So, a little proof goes a long way.

Resolving Complex Injury Claims

Finally, after nine children died previously, a family was bold enough to take on Meta, TikTok, and the MTA in court. Only a handful of personal injury attorneys are qualified to handle such complex cases.

Meta is one of the world’s most valuable corporations and can therefore bring unlimited resources to bear against liability claims.

The MTA isn’t as wealthy as Meta, however various laws, including sovereign immunity, shield government agencies from legal actions.

Complex injury claims are extremely time consuming. Long and frustrating procedural delays are par for the course. During this process, a personal injury lawyer must be a cheerleader as well as a legal advocate. 

Many victims lose heart in these cases and settle their cases for pennies on the dollar. If that happens, the family isn’t fairly compensated and nothing changes.

Young children aren’t legally responsible for reckless injuries. For a free consultation with an experienced personal injury lawyer, contact Napoli Shkolnik. We do not charge upfront legal fees in these matters and only recover a fee when we win your case.