Logue insists that since he is being sued in his official capacity and since the complaint alleges mere negligence, he is entitled to summary judgment on the basis of sovereign immunity. Appellee Wright relies upon the case of Crews v. McQueen, 192 Ga. App. 560 ( 385 S.E.2d 712) (1989), in which the Court of Appeals considered the question of sovereign immunity in the case of a child whose arm was broken during a paddling by a school principal. The majority held that summary judgment in favor of the principal was not appropriate in that case because a question of fact remained as to whether the punishment was within the sound discretion of the principal.

But here, the relevant facts as to Nasworthy's behavior are in sharp dispute, and it is axiomatic that this court cannot make factual determinations. See, e.g., Crews v. McQueen, 192 Ga. App. 560, 561(1)( 385 S.E.2d 712)(1989). Threshold findings of fact concerning the circumstances of Outlaw's arrest must be made before the immunity issue can be decided. Only a jury can do this. In this circumstance, we conclude that the trial court is authorized to submit a special verdict form to the jury to resolve the factual conflicts.