In order to establish IMPLIED intent, the plaintiff will have to prove that Brian Dailey had knowledge "to a substantial certainty" that the plaintiff was about to sit in the place where the chair had been and that IF he pulled it away from her she would fall to (and thereby make contact with) the ground.
So how exactly would the plaintiff’s attorney go about PROVING this?
We know that Brian will maintain that he did not INTEND TO HARM the plaintiff by pulling out the chair (so there is likely no way for the plaintiff to be able to prove any “actual” intent by Brian to cause HARM to the plaintiff). However, Brian has already testified that he KNEW that the plaintiff was about to sit in the place where the chair had been before he pulled it away. So, the plaintiff should easily be able to prove that Brian at least HAD KNOWLEDGE of this fact.
But, what else is still MISSING in order for the plaintiff to PROVE that Brian KNEW "to a substantial certainty" that the plaintiff (whom he admittedly knew was about to sit in the place where the chair had been) would make a harmful (or offensive) contact with the ground IF he pulled it the chair away from her as she was sitting down?
Now, all the plaintiff has to do is to prove that Brian, even at age five years and seven months old, was aware of the basic concept of GRAVITY. And, proving this should be a fairly easy thing for the plaintiff to do, since even a five-year old child most likely can be shown to know what will happen if someone attempts to sit down where there is no chair.
Even if Brian testifies that HE PERSONALLY was unaware of the basic concept of GRAVITY, all that the plaintiff's attorney would have to do would be to hold up some item (e.g., an apple) to Brian while he was on the witness stand, and then simply "toss it" for him to catch. Without even thinking, it is likely that Brian (or any other five-year old child) would attempt to catch the item to keep it from falling to the ground. Contrary to what Brian may have just testified to concerning his understanding and appreciation of the concept of gravity, his actions in trying to catch the item as it was tossed to him would clearly demonstrate that he did in fact have knowledge of what would happen to the item if he failed to catch it.