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You may not blame the hunter, but the courts and insurance usually will.
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There is always an investigation following a hunting "accident", and it is not uncommon for the investigatng officers to declare that the shooter was not at fault. The two examples I gave fall into such findings. If a bird gets up, and the shooter fires at it, with nothing but tree tops and sky as the backdrop, then you simply can't blame the hunter if there happens to be a bowhunter in camo in one of those trees who never spoke up. Are we to ban bird hunting in forested areas, otherwise, and only allow it in open fields? That would remove HUGE tracts in most states, and completely eliminate hunting for several species such as grouse and woodcock.
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It is 100% in the hunter's power not to shoot the wrong things, including other hunters.
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We may have to agree to disagree on this. In the case above, you can't expect a ground hunter to scout out every tree in the area for treestand hunters with a fine tooth comb before doing any shooting; it's simply unrealistic. And if a hunter is being secretly shadowed, and in hilly country where he believes that he is firing in a safe upward direction, well then the shadowees have created the dangerous situation. In heavily forested areas, there is an understanding that all parties let each other know of their presences when at all possible. A whistle is a very handy piece of equipment for this...
In both cases, the investigation findings that the shooter was not at fault is proof enough for me that it is not always 100% possible to blame the shooter, and that sometimes it is even the "victim's" fault.