to use that superiority to his advantage over the other. United Fire & Casualty Co. v. Nissan Motor Corp., 164 Colo. 42, 433 P.2d 769 (1967). Here, Plaintiff apparently believes the defendants owed him a duty because “they knew [he] was suffering from traumatic brain injuries.” (Doc. No. 3, ¶ 91.) Plaintiff also alleges that Defendant BOA “was in a superior and/or inherently unequal informational, financial, negotiating and/or bargaining position.” (Id., ¶ 92.) However, the fact that Plaintiff had a brain injury does not place a higher duty upon the defendants to safeguard the plaintiffs interests. In order to be liable the superior party must assume a duty to act in the dependent party’s best interest. See Hill v. Bache Halsey Stuart Shields Inc., 790 F.2d 817 (10th Cir.1986) (<HOLDING>); First Nat’l Bank of Meeker v. Theos, 794 P.2d
recognizing the right of a creditor to sue a corporate director for breach of fiduciary duty holding that a plaintiff seeking individual relief under erisa  502a3 under a breach of fiduciary duty theory did not have a cause of action when the alleged breach of fiduciary duty was a failure to distribute benefits in accordance with the plan holding that breach of fiduciary duty claim was preempted by fehba holding that the trustee did not breach its fiduciary duty when its actions were consistent with the trust instrument recognizing that fiduciary liability requires not onlya repose of trust but an assumption of a duty and breach of that duty