Court in Perennial Judicial Hellhole® Opens Door to Novel Theory of Liability for Social Media Companies

On June 27, Judge Paul A. Goetz delivered a summer treat to plaintiffs’ lawyers when he permitted a parent’s wrongful death case to move forward against social media platforms TikTok and Instagram after her son died in a viral challenge.  The case is based on a novel theory of liability that could significantly expand liability for social media companies.

In the original suit, the plaintiff claimed the social media platforms’ algorithms exposed her son to “dangerous content.” This “dangerous content”, the plaintiff alleges, is what convinced her son to pursue the ‘subway surfing’ challenge that proved fatal in 2023. The challenge requires individuals to climb out onto the outside of subway cars once they are in motion and lay flat when the subway passes through tunnels.

While algorithms are meant to direct favored content to a precise audience, individuals can guide it by choosing different content which then allows the algorithm to respond with similar material. The plaintiff contends that not only did the algorithm target her son with subway surfing content, but that he never sought it out.

Judge Goetz’s order dismissed some of the plaintiff’s claims, like unjust enrichment and intentional infliction of emotional distress, but maintained the product liability claims of design defect and failure to warn as well as general negligence claims.  According to Judge Goetz, “Based on the allegations in the complaint, 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.”

Judge Goetz also dismissed the claims against the Metropolitan Transportation Authority (MTA).  The lawsuit claimed that the MTA knew young people were participating in the subway surfing challenge and did nothing to prevent it.